Opinion
570706/19
05-18-2022
The People of the State of New York, Respondent, v. Edward Eberhart, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Hagler, Michael, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James G. Clynes, J.), rendered September 17, 2019, convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposing sentence.
Judgment of conviction (James G. Clynes, J.), rendered September 17, 2019, affirmed. Defendant's contention that assigned counsel provided conflicted, ineffective representation because, at a single court appearance, the prosecutor mentioned an unspecified conflict of interest is unpreserved and not reviewable on direct appeal because this claim involves factual matters outside the record concerning the conduct of the defense that should have been raised in a CPL 440.10 motion (see People v Fermin, 176 A.D.3d 539 [2019]; People v Peyton, 27 A.D.3d 402 [2006], lv denied 7 N.Y.3d 793 [2006]). As an alternative holding, we find that the record is lacking in any detail as to whether an actual or potential conflict existed that would have triggered the court's duty to make a further inquiry (see generally People v Gomberg, 38 N.Y.2d 307, 314 [1975]; People v Patterson, 177 A.D.3d 1027 [2019], lv denied 34 N.Y.3d 1131 [2020]). The record does not indicate that defense counsel simultaneously represented defendant and another client with an opposing interest (see People v Wright, 27 N.Y.3d 516, 520-521 [2016]) or that her representation created a potential conflict that impacted the defense (see id.; People v Mezquita, 191 A.D.3d 541 [2021]).
Defendant's constitutional speedy trial claim, raised for the first time on appeal, is both unpreserved and unreviewable (see People v Jordan, 62 N.Y.2d 825 [1984]; People v Card, 107 A.D.3d 820 [2013], lv denied 21 N.Y.3d 1072 [2013]; People v Capellan, 38 A.D.3d 393 [2007], lv denied 9 N.Y.3d 873 [2007]), and we decline to review it in the interest of justice. As an alternative holding, to the extent that the record permits review, we conclude, upon review of the relevant factors (see People v Taranovich, 37 N.Y.2d 442, 445 [1975]), that defendant's constitutional right to a speedy trial was not violated. The crimes, two Class B felony drug offenses, were serious, there is a lack of any apparent prejudice to defendant or significant delay caused by the People, and defendant was not incarcerated (see People v Wiggins, 31 N.Y.3d 1, 9-10 [2018]).
All concur