ABDULLA, SALEH, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
877
KA 10-01262
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SALEH ABDULLA, DEFENDANT-APPELLANT.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (John L.
Michalski, A.J.), rendered June 10, 2009. The judgment convicted
defendant, upon his plea of guilty, of sexual abuse in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of sexual abuse in the first degree (Penal Law
§ 130.65 [3]). As defendant correctly contends, defense counsel erred
in informing him that, despite his guilty plea, he reserved the right
to argue on appeal that County Court erred in denying his pro se
motion to dismiss the indictment based on the alleged violation of his
statutory right to a speedy trial (see People v Hansen, 95 NY2d 227,
231 n 3). We conclude, however, that defendant’s contention that he
was thereby denied effective assistance of counsel “does not survive
his guilty plea because ‘[t]here is no showing that the plea
bargaining process was infected by any allegedly ineffective
assistance or that defendant entered the plea because of his
attorney[’]s allegedly poor performance’ ” (People v LaBar, 16 AD3d
1084, 1085, lv denied 5 NY3d 764). The record establishes that
defendant admitted at the plea and at sentencing that he pleaded
guilty in order to avoid a lengthy prison sentence. Indeed, defendant
was indicted on three class B violent felony offenses and thus faced
the possibility of consecutive terms of imprisonment ranging from 5 to
25 years (see §§ 70.02 [3] [a]; 70.25 [1]). Defendant pleaded guilty
to a class D violent felony offense and was sentenced to a determinate
term of imprisonment of two years and a two-year period of postrelease
supervision. In any event, we note that the record establishes that
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KA 10-01262
defendant’s statutory speedy trial rights were not violated.
Entered: September 28, 2012 Frances E. Cafarell
Clerk of the Court