People v. Zeigler, 2015 NY Slip Op 03874

Summary of Case- In this criminal appeal, the appellate court affirmed the amended judgment of the criminal court. The defendant had agreed to a plea bargain, but subsequently it was determined that the post-release supervision imposed in the judgment was not allowed under the law. The defendant was offered the right to withdraw his plea, but rather than withdraw his plea, he wanted to amend his waiver of his right to appeal. The court permitted this amendment. On appeal, the defendant argued that he was not given the right to testify before the grand jury and argued ineffective assistance of counsel. The appellate court affirmed the amended judgment finding that the defendant waived his right to appeal as to the grand jury issue when he failed to move to dismiss the indictment, and that the defendant was not denied effective assistance of counsel.

Decision-

People v. Zeigler

2015 NY Slip Op 03874

Decided on May 6, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 6, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

LEONARD B. AUSTIN

HECTOR D. LASALLE, JJ.

2012-07628

2012-09881

(Ind. No. 3209-10)

[*1]The People of the State of New York, respondent,

v

Andrew Zeigler, Jr., appellant.

Mark Diamond, New York, N.Y., for appellant, and appellant pro se.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm of counsel), for respondent.

DECISION & ORDER

Appeals by the defendant from (1) a judgment of the County Court, Suffolk County (Cohen, J.), rendered July 17, 2012, and (2) an amended judgment of the same court, rendered September 25, 2012, convicting him of robbery in the first degree and attempted robbery in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the appeal from the judgment is dismissed, as the judgment was superseded by the amended judgment; and it is further,

ORDERED that the amended judgment is affirmed.

The defendant entered a plea of guilty to robbery in the first degree and attempted robbery in the first degree. As part of the plea agreement, he waived his right to appeal. The defendant was sentenced in accordance with the plea agreement. Subsequently, the County Court learned that the judgment imposed periods of postrelease supervision that were not permissible under the law, and offered the defendant the opportunity to withdraw his plea. The defendant declined the opportunity on the condition that he be permitted to amend his waiver of the right to appeal to allow him to appeal the issue of the denial of his motion to dismiss the indictment on the ground that he was denied his right to testify before the grand jury. The County Court consented to the amendment, and an amended judgment imposing sentence and the proper periods of postrelease supervision was entered.

Contrary to the People's contention, under the circumstances of this case, the defendant did not waive his challenge to the denial of his motion to dismiss the indictment on the ground that he was denied the right to testify before the grand jury by pleading guilty in the first instance. However, we find that the County Court properly denied the motion, as the defendant waived his contention by failing to move to dismiss the indictment within five days after his arraignment thereon (see CPL 190.50[5][c]; People v Simon, 101 AD3d 908, 909; People v Occhione, 94 AD3d 1021, 1022; People v Venable, 7 AD3d 647, 648). Contrary to the defendant's contention, his attorney's failure to effectuate his intention to testify before the grand jury, standing [*2]alone, did not constitute the denial of effective assistance of counsel (see People v Occhione, 94 AD3d at 1022; People v Venable, 7 AD3d at 648).

The defendant's challenge to the procedure used to adjudicate him a second felony offender is precluded by his valid waiver of the right to appeal (see People v Callahan, 80 NY2d 273, 281; cf. People v Evans, 121 AD3d 1012, 1012-1013; People v Ingram, 118 AD3d 722, 722), as is his challenge to the denial of his statutory speedy trial motion (see People v Kidd, 100 AD3d 779, 779; People v Holland, 44 AD3d 874, 874). Moreover, by pleading guilty, the defendant forfeited his right to review the speedy trial claim (see People v Kidd, 100 AD3d at 779).

Our review of the defendant's contention, raised in his pro se supplemental brief, that he was deprived of the effective assistance of counsel, is precluded by his valid waiver of the right to appeal, since none of the deficiencies by counsel he alleges implicate the voluntariness of his plea (see People v Gomez, 114 AD3d 701, 702). Moreover, since his claim of ineffective assistance of counsel did not directly involve the plea bargaining process, the defendant forfeited the claim by pleading guilty (see People v McGuire, 122 AD3d 947, 948).

DILLON, J.P., LEVENTHAL, AUSTIN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Siskopoulos Law Firm, LLP

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