| People v Lara |
| 2018 NY Slip Op 02006 |
| Decided on March 22, 2018 |
| 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 22, 2018
Tom, J.P., Webber, Oing, Moulton, JJ.
2627/09 6064 6063
v
Ramon Lara, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Wiener of counsel), for appellant.
Ramon Lara, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Susan Gliner of counsel), for respondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered July 10, 2012, as amended July 16, 2012, convicting defendant, upon his plea of guilty, of murder in the second degree, and sentencing him to a term of 17 years to life, unanimously affirmed.
After considering the factors set forth in People v Taranovich (37 NY2d 442, 445 [1975]), we conclude that the court properly denied defendant's constitutional speedy trial motion. Although there was substantial delay, it was satisfactorily explained, and relatively little of it was attributable to the People. Almost all of the delay is directly attributable to defendant, because he fled to the Dominican Republic shortly after committing the murder. Had he not done so, or had he terminated his flight, the prosecution would not have been required to take any steps to extradite him (see People v Diaz, 81 AD3d 516 [1st Dept 2011], lv denied 17 NY3d 794 [2011]; see also People v Ortiz, 60 AD3d 563 [1st Dept 2009], lv denied 12 NY3d 919 [2009]). In any event, at the time of defendant's flight, while the United States had an extradition treaty with the Dominican Republic, that nation's law forbade any extradition of its own citizens, such as defendant. Accordingly, the police acted reasonably and in good faith by continuing to investigate defendant's whereabouts, but operating under the assumption that he could not be extradited. This conclusion is not undermined by the fact that Dominican extradition law changed somewhat during the period of delay at issue. Furthermore, defendant has not demonstrated that his ability to defend himself was prejudiced by the delay, and we find that the remaining Taranovich factors weigh against dismissal.
Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record, including attorney-client consultations and defense counsel's plea bargaining strategy (see People v Harmon, 50 AD3d 318, 318-319 [1st Dept 2008] lv denied 10 NY3d 935 [2008]). Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. In the alternative, to the extent the existing record permits review, we find that defendant received effective assistance under the state and federal standards (see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]), and that there was no violation of defendant's right to conflict-free representation. It appears that counsel originally intended to assert a justification defense, but advised the court, in the course of plea discussions where the court was not acting as a trier of fact, that he had advised his client to plead guilty because a justification defense would be unsuccessful. Defendant has not shown that counsel thereby created a conflict or impaired defendant's free choice to plead guilty.
We have considered and rejected defendant's pro se claim regarding his assertion of actual innocence.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 22, 2018
DEPUTY CLERK