Opinion
1339 KA 15–01964
12-21-2018
The PEOPLE of the State of New York, Respondent, v. Guy DILLON, Jr., Defendant–appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CRAIG P. SCHLANGER OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CRAIG P. SCHLANGER OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (NICOLE K. INTSCHERT OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree ( Penal Law § 140.25 [2 ] ) and petit larceny (§ 155.25). Defendant contends that Supreme Court erred in denying his pro se speedy trial motion because defense counsel did not execute a valid written waiver of defendant's statutory speedy trial rights prior to the expiration of the six-month time period in which the People were required to be ready for trial (see CPL 30.30[1][a] ). That contention is raised for the first time on appeal and thus is not preserved for our review (see generally People v. Beasley, 16 N.Y.3d 289, 292, 921 N.Y.S.2d 178, 946 N.E.2d 166 [2011] ; People v. Goode, 87 N.Y.2d 1045, 1047, 643 N.Y.S.2d 477, 666 N.E.2d 182 [1996] ). In any event, we conclude that the contention is without merit. It is undisputed that defendant met his initial burden "of alleging that the People were not ready for trial within the statutorily prescribed time period" ( People v. Allard, 28 N.Y.3d 41, 45, 41 N.Y.S.3d 196, 63 N.E.3d 1140 [2016] ), and the burden therefore shifted to the People to demonstrate "sufficient excludable time" ( People v. Kendzia, 64 N.Y.2d 331, 338, 486 N.Y.S.2d 888, 476 N.E.2d 287 [1985] ). The People met their burden by establishing that defense counsel orally waived defendant's speedy trial rights within the statutory period, thus extending the time for the People to proceed with prosecution (see People v. Wheeler, 159 A.D.3d 1138, 1141, 72 N.Y.S.3d 220 [3d Dept. 2018], lv denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ; see generally People v. Dickinson, 18 N.Y.3d 835, 836, 938 N.Y.S.2d 836, 962 N.E.2d 257 [2011] ). The written waiver produced by the People here establishes the validity of the oral waiver (cf. People v. Rousaw, 151 A.D.3d 1179, 1180, 56 N.Y.S.3d 606 [3d Dept. 2017] ). We reject defendant's further contention that the sentence is unduly harsh and severe. We have considered defendant's remaining contention and conclude that it lacks merit.