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A DEFENDANT WHO PLEADS GUILTY FORFEITS THE RIGHT TO APPEAL THE DENIAL OF A SPEEDY TRIAL MOTION; HERE, BECAUSE THE COURT ERRONEOUSLY TOLD DEFENDANT HE WOULD BE ABLE TO APPEAL, THE DEFENDANT MUST BE GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEA (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the court was wrong when it informed defendant he retained the right to appeal the ruling on the speedy trial motion (CPL 30.30) after his guilty plea. Therefore defendant was entitled to the opportunity to withdraw his plea in this attempted murder case:

A defendant who has entered a plea of guilty “forfeit[s] his [or her] right to claim that he [or she] was deprived of a speedy trial under CPL 30.30” … . However, where a defendant’s plea is predicated upon a false assurance that, notwithstanding the plea, the defendant can nonetheless contest the denial of a CPL 30.30 motion, the defendant is entitled, if he or she wishes, to withdraw the plea of guilty … .

Here, it is clear from the record that the defendant pleaded guilty in reliance upon a promise from the Supreme Court that, upon his plea of guilty, he would retain the right to appeal the denial of his motion pursuant to CPL 30.30 to dismiss the indictment. However, that promise cannot be fulfilled … . Therefore, as the People concede, the defendant is entitled to withdraw his plea of guilty … .  People v Hernandez, 2019 NY Slip Op 07605, Second Dept 10-23-19

 

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