People v. Silver (Jacqueline)

People v Silver (2022 NY Slip Op 51230(U)) [*1] People v Silver (Jacqueline) 2022 NY Slip Op 51230(U) [77 Misc 3d 131(A)] Decided on November 18, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on November 18, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ 2019-1341 Q CR The People of the State of New York, Respondent, against Jacqueline Silver, Appellant. Appellate Advocates (David L. Goodwin of counsel), for appellant. Queens County District Attorney (Johnnette Traill and Amanda Iannuzzi of counsel), for respondent. Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Michelle A. Johnson, J.), rendered March 7, 2019. The judgment convicted defendant, upon her plea of guilty, of disorderly conduct, and imposed sentence. The appeal brings up for review an order of that court (Danielle L. Hartman, J.) dated August 13, 2018 denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds. ORDERED that the judgment of conviction is affirmed. On September 19, 2017, defendant was arraigned on an accusatory instrument charging her with one count of stalking in the third degree (Penal Law § 120.50 [3]), three counts of coercion in the second degree (Penal Law § 135.60 [4], [5], [9]), two counts of aggravated harassment in the second degree (Penal Law § 240.30 [1], [2]), one count of menacing (Penal Law § 120.15), one count of stalking in the fourth degree (Penal Law § 120.45 [1]), one count of trespass (Penal Law § 140.05), and two counts of harassment in the second degree (Penal Law § 240.26 [2], [3]). On August 13, 2018, the Criminal Court (Danielle L. Hartman, J.) denied a defense motion to dismiss the accusatory instrument on statutory speedy trial grounds, after finding only 66 days chargeable, less than the 90 days allotted to the People to be ready for trial [*2](see CPL 30.30 [1] [b]). On March 7, 2019, defendant pleaded guilty to the added charge of disorderly conduct (Penal Law § 240.20) in satisfaction of the docket and in exchange for a sentence of time served. On appeal, defendant asserts that the Criminal Court's determination that the People had not surpassed their statutory speedy trial allotment of 90 days was erroneous. At the time of the guilty plea in this matter in 2019, it was the case that, "by pleading guilty, the defendant forfeited [her] right to review the speedy trial claim" (People v Zeigler, 128 AD3d 737, 738 [2015]; see People v Kidd, 100 AD3d 779, 779 [2012]; People v Holland, 44 AD3d 874, 874 [2007]). During the pendency of defendant's appeal, however, the legislature amended CPL 30.30 (eff. Jan. 1, 2020). Under this new statutory scheme, "[a]n order finally denying a motion to dismiss [on statutory speedy trial grounds] shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty" (CPL 30.30 [6]). Defendant asserts that subsection 6 governs this appeal and renders her preserved statutory speedy trial argument reviewable. In People v Galindo (38 NY3d 199 [2022]), the Court of Appeals, in addressing the retroactivity of separate subsection (1) (e) of CPL 30.30, held that "the newly worded [speedy trial] statute does not apply to criminal actions commenced before its effective date" (id. at *4). Pursuant to the Galindo court's reasoning, CPL 30.30 (6) is similarly not retroactive and thus is not applicable to the instant case (see People v Santana, — AD3d —, 2022 NY Slip Op 05620 [2022]; People v Lara-Medina, 195 AD3d 542 [2021]; People v Omodunbi, 76 Misc 3d 129[A], 2022 NY Slip Op 50791[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Consequently, defendant's guilty plea constituted a waiver of her statutory speed trial claim, her sole appellate argument (see Zeigler, 128 AD3d at 738; People v Kidd, 100 AD3d 779, 779 [2012]; People v Holland, 44 AD3d 874, 874 [2007]). Accordingly, the judgment of conviction is affirmed. WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 18, 2022