Peoplev.Guerrero

Supreme Court, Appellate Division, First Department, New York.Mar 24, 2015
3 N.Y.S.3d 600 (N.Y. App. Div. 2015)
3 N.Y.S.3d 600126 A.D.3d 6132015 N.Y. Slip Op. 2435

03-24-2015

The PEOPLE of the State of New York, Respondent, v. Lerio GUERRERO, Defendant–Appellant.

Glenn A. Garber, P.C., New York (Glenn A. Garber of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.


Glenn A. Garber, P.C., New York (Glenn A. Garber of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.

Opinion Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 23, 2012, convicting defendant, upon his plea of guilty, of rape in the first degree, sodomy in the first degree (two counts), burglary in the first degree, robbery in the first degree (two counts) and attempted robbery in the first degree, and sentencing him to an aggregate term concurrent terms of 15 years, unanimously affirmed.

After considering the factors set forth in People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303 (1975), we conclude that defendant was not deprived of his constitutional right to a speedy trial (see People v. Bradberry, 68 A.D.3d 1688, 1690, 891 N.Y.S.2d 850 [2009], lv. denied 14 N.Y.3d 838, 901 N.Y.S.2d 145, 927 N.E.2d 566 [2010] ). Although the 13–year delay was significant, it was explained by the People's practical inability to prosecute defendant until they obtained his DNA sample from another arrest. The charges were very serious, and defendant has not established prejudice, particularly since, had he proceeded to trial, his guilt would have been established by DNA evidence.

Each of defendant's remaining claims is forfeited by his guilty plea (see People v. Konieczny, 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ; People v. Hansen, 95 N.Y.2d 227, 230–231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ), as well as being foreclosed by his valid waiver of the right to appeal. As an alternative holding, we reject defendant's claims on the merits. The DNA indictment and its amendment to add the name of defendant once he was identified as the source of the DNA was proper (see People v. Martinez, 52 A.D.3d 68, 855 N.Y.S.2d 522 [1st Dept.2008], lv. denied 11 N.Y.3d 791, 866 N.Y.S.2d 617, 896 N.E.2d 103 [2008] ; see also People v. Ogunmekan, 95 A.D.3d 701, 945 N.Y.S.2d 58 [1st Dept.2012], lv. denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012] ), and defendant's statute of limitations argument is unavailing (see CPL 30.10[4][a][ii] ).

TOM, J.P., RENWICK, DeGRASSE, MANZANET–DANIELS, CLARK, JJ., concur.