         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
533
KA 09-01894
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY J. PADUANO, DEFENDANT-APPELLANT.


LAW OFFICES OF FRANK HOUSH, BUFFALO (FRANK HOUSH OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered August 11, 2009. The judgment convicted
defendant, upon his plea of guilty, of grand larceny in the third
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of grand larceny in the third degree (Penal Law §
155.35), defendant contends that he was denied his right to a speedy
trial pursuant to CPL 30.30. By pleading guilty, however, defendant
forfeited that contention (see People v O’Brien, 56 NY2d 1009, 1010;
People v Suarez, 55 NY2d 940, 942). In any event, defendant’s
contention does not survive his valid waiver of the right to appeal
(see People v Barnes, 41 AD3d 1309, lv denied 9 NY3d 920; People v
Tracey, 13 AD3d 1174, lv denied 4 NY3d 836). Defendant mistakenly
relies on People v Seaberg (74 NY2d 1, 9) in support of his contention
that his statutory right to a speedy trial cannot be waived inasmuch
as Seaberg concerned the constitutional right to a speedy trial (see
generally People v Weeks, 272 AD2d 983, lv denied 95 NY2d 872). Even
assuming, arguendo, that defendant’s contention included a
constitutional speedy trial claim, we conclude that such a claim may
be voluntarily surrendered or abandoned (see People v Rodriguez, 50
NY2d 553, 557; People v Denis, 276 AD2d 237, 247, lv denied 96 NY2d
782, 861), and the record demonstrates that defendant withdrew his
speedy trial motion before pleading guilty.

     Defendant’s further contention that he was denied effective
assistance of counsel does not survive the plea or his valid waiver of
the right to appeal “because defendant failed to demonstrate that ‘the
plea bargaining process was infected by [the] allegedly ineffective
                                 -2-                           533
                                                         KA 09-01894

assistance or that defendant entered the plea because of [defense
counsel’s] allegedly poor performance’ ” (People v Wright, 66 AD3d
1334, lv denied 13 NY3d 912). In any event, to the extent that
defendant contends that defense counsel was ineffective for
withdrawing his speedy trial motion, we note that the reasons for
withdrawal are not disclosed in the record, and thus defendant’s
contention involves matters outside the record on appeal and must be
raised by way of a motion pursuant to CPL 440.40 (see generally People
v Cobb, 72 AD3d 1565, 1567, lv denied 15 NY3d 803; People v Griffin,
48 AD3d 1233, 1236, lv denied 10 NY3d 840).




Entered:   May 6, 2011                         Patricia L. Morgan
                                               Clerk of the Court
