People v Spence

People v Spence 2012 NY Slip Op 09100 Decided on December 27, 2012 Appellate Division, Third 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 and Entered: December 27, 2012
104110

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

HARUN SPENCE, Appellant.

Calendar Date: November 16, 2012
Before: Mercure, J.P., Spain, Malone Jr., Stein and McCarthy, JJ.


Andrew Kossover, Public Defender, Kingston
(Michael K. Gould of counsel), for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan
Gudesblatt Lamb of counsel), for respondent.

MEMORANDUM AND ORDER


Mercure, J.P.

Appeal from a judgment of the County Court of Ulster County (Williams Jr., J.), rendered November 24, 2010, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant was charged in an indictment with criminal possession of a controlled substance in the third degree based upon his alleged possession of cocaine. He thereafter moved to dismiss the indictment on speedy trial grounds, claiming that the People's prior announcement of readiness for trial was illusory. County Court denied the motion, and defendant then pleaded guilty to the crime of criminal possession of a controlled substance in the third degree. He was sentenced, as a second felony offender, to two years in prison to be followed by three years of postrelease supervision. Defendant appeals, and we now affirm.

Defendant argues that the indictment must be dismissed pursuant to CPL 30.30 because the People's statement of readiness was premature in the absence of a formal laboratory report and analysis of the alleged drug that he possessed. His plea of guilty, however, operates as a waiver of any statutory speedy trial claim that he may have had under CPL 30.30 (see People v O'Brien, 56 NY2d 1009, 1010 [1982]; People v Cunningham, 86 AD3d 859, 860 [2011]; see also [*2]People v Cain, 24 AD3d 889, 890 [2005], lv denied 7 NY3d 753 [2006]). His further assertion that he was improperly sentenced as a second felony offender is unpreserved, and corrective action in the interest of justice is unwarranted because the claimed error was harmless oversight in light of the substantial compliance with CPL 400.21 (3) present here (see People v Califano, 84 AD3d 1504, 1506-1507 [2011], lv denied 17 NY3d 805 [2011]; People v Atkinson, 58 AD3d 943, 944 [2009]; see also People v Bouyea, 64 NY2d 1140, 1142-1143 [1985]).

Spain, Malone Jr., Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.