Opinion
2014-06-19
The PEOPLE of the State of New York, Respondent, v. Aaron M. WILLEY, Appellant.
Teresa C. Mulliken, Harpersfield, for appellant. John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.
Teresa C. Mulliken, Harpersfield, for appellant. John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY, EGAN JR. and CLARK, JJ.
GARRY, J.
Appeal from a judgment of the County Court of Otsego County (Lambert, J.), rendered April 2, 2012, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree (two counts).
In 2011, defendant was charged in an indictment with assault in the second degree after allegedly causing physical injury to another inmate while confined in the Otsego County Correctional Facility. In 2012, he was charged in a superior court information with additional counts of assault in the second degree and attempted assault in the second degree, arising from a separate altercation with a correction officer. Defendant waived indictment on the superior court information and, in full satisfaction all charges, pleaded guilty to two counts of attempted assault in the second degree, also waiving his right to appeal. In accord with the plea agreement, and as a second felony offender, he was sentenced to an aggregate prison term of 1 1/2 to 3 years.
Defendant appeals, arguing solely that County Court erred in denying his pretrial motion to dismiss the indictment on the ground that he was deprived of a speedy trial under CPL 30.30, without conducting a hearing. Upon this record, however, and absent a challenge to the voluntariness of his guilty plea or his waiver of the right to appeal, defendant's statutory claim is precluded ( see People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982]; People v. Devino, 110 A.D.3d 1146, 1147, 973 N.Y.S.2d 372 [2013];People v. Spence, 101 A.D.3d 1477, 1478, 955 N.Y.S.2d 897 [2012] ). Accordingly, the judgment must be affirmed.
To the extent that defendant had previously asserted a constitutional claim, this would survive his guilty plea and appeal waiver; nonetheless, any such claim is deemed abandoned by his failure to raise it in his brief upon appeal ( see People v. Alexander, 19 N.Y.3d 203, 215 n. 8, 947 N.Y.S.2d 386, 970 N.E.2d 409 [2012];People v. Irvis, 90 A.D.3d 1302, 1303, 935 N.Y.S.2d 371 [2011],lv. denied19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 [2012];People v. McCorkle, 67 A.D.3d 1249, 1250 and n., 890 N.Y.S.2d 665 [2009] ).
ORDERED that the judgment is affirmed.
PETERS, P.J., STEIN, EGAN JR. and CLARK, JJ., concur.