| People v Guerrero |
| 2015 NY Slip Op 02435 |
| Decided on March 24, 2015 |
| Appellate Division, First 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 March 24, 2015
Tom, J.P., Renwick, DeGrasse, Manzanet-Daniels, Clark, JJ.
14620 1762/05
v
Lerio Guerrero, Defendant-Appellant.
Glenn A. Garber, P.C., New York (Glenn A. Garber of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel), for respondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner,
J.), rendered October 23, 2012, convicting defendant, upon his
plea of guilty, of rape in the first degree, sodomy
in the first degree (two counts), burglary in the first degree,
robbery in the first degree (two counts) and attempted robbery in the first degree, and sentencing him to an aggregate term concurrent terms of 15 years, unanimously affirmed.
After considering the factors set forth in People v Taranovich (37 NY2d 442 [1975]), we conclude that defendant was not deprived of his constitutional right to a speedy trial (see People v Bradberry, 68 AD3d 1688, 1690 [2009], lv denied 14 NY3d 838 [2010]). Although the 13-year delay was significant, it was explained by the People's practical inability to prosecute defendant until they obtained his DNA sample from another arrest. The charges were very serious, and defendant has not established prejudice, particularly since, had he proceeded to trial, his guilt would have been established by DNA evidence.
Each of defendant's remaining claims is forfeited by his guilty plea (see People v Konieczny, 2 NY3d 569, 575 [2004]; People v Hansen, 95 NY2d 227, 230-231 [2000]), as well as being foreclosed by his valid waiver of the right to appeal. As an alternative holding, we reject defendant's claims on the merits. The DNA indictment and its amendment to add the name of defendant once he was identified as the source of the DNA was proper (see People v Martinez, [*2]52 AD3d 68 [1st Dept 2008], lv denied 11 NY3d 791 [2008]; see also People v Ogunmekan, 95 AD3d 701 [1st Dept 2012], lv denied 19 NY3d 999 [2012]), and defendant's statute of limitations argument is unavailing (see CPL 30.10[4][a][ii]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 24, 2015
CLERK