Opinion
April 29, 1985
Appeal from the County Court, Suffolk County (Cacciabaudo, J.).
Judgments modified, as a matter of discretion in the interest of justice, by deleting the provisions of the sentences requiring defendant to serve three concurrent terms of 45 days' incarceration, and substituting therefor provisions requiring defendant to engage in community service. As so modified, judgments affirmed and matters remitted to the County Court, Suffolk County to set the terms of community service and for further proceedings pursuant to CPL 460.50 (5).
By voluntarily and knowingly pleading guilty, upon the advice of counsel, defendant has waived the claim that he was denied his statutory right to a speedy trial pursuant to CPL 30.30 ( People v. O'Brien, 56 N.Y.2d 1009; People v. Suarez, 55 N.Y.2d 940; People v. Friscia, 51 N.Y.2d 845); that the evidence before the Grand Jury was legally insufficient ( see, People v. Ferrara, 99 A.D.2d 257, 259; cf. People v. Pelchat, 62 N.Y.2d 97); that he was a victim of selective prosecution ( People v. Rodriguez, 79 A.D.2d 539, affd 55 N.Y.2d 776); and that he was prejudiced by the People's failure to preserve certain evidence ( see, Menna v. New York, 423 U.S. 61, 62-63, n 2; People v. Thomas, 74 A.D.2d 317, affd 53 N.Y.2d 338). There is no legal or factual support for defendant's claim that the particular circumstances justify appellate review of these issues. However, under the facts of this case, the court should have imposed periods of community service rather than incarceration. O'Connor, J.P., Weinstein, Brown and Kunzeman, JJ., concur.