Opinion
570706/19
05-18-2022
The PEOPLE of the State of New York, Respondent, v. Edward EBERHART, Defendant-Appellant.
Per Curiam.
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 AD3d 539 [2019] ; People v Peyton , 27 AD3d 402 [2006], lv denied 7 NY3d 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 NY2d 307, 314 [1975] ; People v Patterson , 177 AD3d 1027 [2019], lv denied 34 NY3d 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 NY3d 516, 520-521 [2016] ) or that her representation created a potential conflict that impacted the defense (see id. ; People v Mezquita , 191 AD3d 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 NY2d 825 [1984] ; People v Card , 107 AD3d 820 [2013], lv denied 21 NY3d 1072 [2013] ; People v Capellan , 38 AD3d 393 [2007], lv denied 9 NY3d 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 NY2d 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 NY3d 1, 9-10 [2018] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur.