People v. Bennett , 38 N.Y.S.3d 290 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 6, 2016 106008
106537
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
KARRIEM BENNETT,
Appellant.
________________________________
Calendar Date: September 14, 2016
Before: McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.
__________
Michelle E. Stone, Vestal, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton
(Stephen D. Ferri of counsel), for respondent.
__________
Lynch, J.
Appeal from a judgment of the County Court of Broome County
(Cawley, J.), rendered May 24, 2013, convicting defendant upon
his guilty plea of the crime of attempted assault in the second
degree (two counts).
On August 16, 2012, defendant waived indictment and pleaded
guilty to the reduced charge of attempted assault in the second
degree in satisfaction of a superior court information, admitting
that he had intentionally slashed the victim's face with a knife.
The plea was pursuant to a plea agreement providing for five
years of probation. While awaiting sentencing, defendant was
arrested and later charged in an indictment with another assault
in the second degree stemming from his actions in cutting a
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second victim with a knife. County Court advised defendant that
this arrest violated the conditions of his release and that it
intended to impose an enhanced sentence on the first attempted
assault. Pursuant to a combined negotiated disposition,
defendant pleaded guilty under the indictment to the reduced
charge of attempted assault in the second degree. County Court,
as promised, imposed an enhanced prison sentence of 1 to 3 years
on the first attempted assault conviction, to be served
concurrently with the agreed-upon sentence of 1 to 3 years for
the second attempted assault conviction, and ordered that
defendant pay restitution. Defendant now appeals.
We affirm. Initially, defendant's challenge to the
enhanced sentence imposed on his plea to the first attempted
assault charge is not preserved for our review, as he failed to
raise any objection to the enhanced sentence or to make an
appropriate motion to withdraw his plea (see People v Tole, 119
AD3d 982, 983 [2014]). Moreover, defendant does not dispute that
County Court had warned him at the time of that plea, and he
agreed, that if he were arrested while awaiting sentencing on
that plea, the court would not be bound to the agreed-upon
probationary sentence and advised him that he could face up to
1a to 4 years in prison (see People v Valencia, 3 NY3d 714, 715
[2004]; People v Parker, 57 NY2d 136, 141 [1982]; People v
Miller, 117 AD3d 1237, 1238 [2014], lv denied 24 NY3d 1086
[2014]; compare People v Rushlow, 137 AD3d 1482, 1483-1484
[2016]). Further, defendant did not contest that his arrest
violated that condition of his first plea, and he thereafter
entered a guilty plea to the second attempted assault charge
pursuant to an agreement setting forth the promised sentences to
be imposed for both attempted assaults. Thus, we perceive no
basis upon which to take corrective action in the interest of
justice. With regard to defendant's contention that the agreed-
upon sentence was harsh and excessive, his release from prison
after serving his sentence rendered this claim moot (see People v
Cancer, 132 AD3d 1021, 1022 [2015]; People v Rodwell, 122 AD3d
1065, 1068 [2014], lv denied 25 NY3d 1170 [2015]).
Next, defendant claims that the six-month, four-day delay
between the commencement of the first criminal action on February
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12, 2012, when he was arraigned on the felony complaint charging
the first assault, and his August 6, 2012 guilty plea to that
attempted assault deprived him of his constitutional right to a
speedy trial (see CPL 1.20 [17]; 30.20). While this claim
survives defendant's guilty plea, it is unpreserved for our
review as he failed to raise it in a pretrial motion (see People
v Lawrence, 64 NY2d 200, 203 [1984]; People v Archie, 116 AD3d
1165, 1165 [2014]; People v Martin, 81 AD3d 1178, 1179 [2011], lv
denied 17 NY3d 819 [2011]; see also CPL 170.30 [1] [e]; [2]).
Were this issue properly before us, we would find it to be
without merit given the limited delay, lack of any apparent
prejudice to defendant and the fact that he was not incarcerated
during this time (see People v Taranovich, 37 NY2d 442, 445
[1975]; People v Pope, 96 AD3d 1231, 1233-1234 [2012], lv denied
20 NY3d 1064 [2013]).
Finally, defendant contends that he was deprived of the
effective assistance of counsel, focusing on counsel's claimed
failure to seek dismissal at a preliminary hearing of the felony
complaint charging the second assault (see CPL 180.10). This
claim is unpreserved for our review, as defendant did not raise
it before County Court, and the record does not support the
conclusion that he had a colorable claim to dismiss that felony
complaint (see People v Soprano, 135 AD3d 1243, 1243-1244 [2016],
lv denied 27 NY3d 1007 [2016]; People v Vonneida, 130 AD3d 1322,
1322-1323 [2015], lv denied 26 NY3d 1093 [2015]). Moreover, the
transcript of defendant's arraignment on the second assault
charge and counsel's reasons for waiving a preliminary hearing
(if this occurred) are outside the record before us and, as such,
this claim is more properly resolved in a motion to vacate
pursuant to CPL article 440 (see People v Garry, 133 AD3d 1039,
1040 [2015]).1 In any event, "[i]n the context of a guilty plea,
a defendant has been afforded meaningful representation when he
or she receives an advantageous plea and nothing in the record
casts doubt on the apparent effectiveness of counsel" (People v
1
The record reflects that a preliminary hearing on the
second assault charge was scheduled for November 8, 2012 in
Binghamton City Court.
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Soprano, 135 AD3d at 1243 [internal quotation marks and citation
omitted]). Thus, were the issue preserved, we would find that
defendant received a very favorable plea deal resolving two
violent assaults and that nothing in the record supports the
claim that he was deprived of meaningful representation (see id.
at 1244).
McCarthy, J.P., Rose, Devine and Mulvey, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court