PEOPLE v. POWELL (2021)

Supreme Court, Appellate Division, Second Department, New York.2021-12-22No. 2015-07641

Summary · law.co

Holding. The judgment is affirmed. The defendant's speedy trial and Dunaway contentions were either unpreserved for appellate review or lack merit on the substantive merits.

A defendant convicted of criminal contempt in the first degree appealed from his guilty plea conviction, raising challenges about speedy trial violations and the validity of the arrest. The appellate court found that the defendant failed to properly preserve his speedy trial arguments because he had not raised the specific contentions in his original trial motions. Additionally, the court determined that a technical error in the special informations—incorrectly naming someone other than the defendant in one section—did not invalidate the underlying indictment as a jurisdictional matter.

Regarding the defendant's Dunaway claim, the court held that he forfeited this argument by failing to press the trial court for a ruling when the judge did not address his request for a Dunaway hearing. Even if the claim were properly preserved, the defendant had not presented sufficient factual allegations to establish that police lacked probable cause for arrest, which is a prerequisite for obtaining such a hearing.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Preservation of speedy trial arguments on appeal
Jurisdictional defect in indictment based on clerical error
Waiver of Dunaway hearing claim through failure to press trial court
Sufficiency of factual allegations to support probable cause challenge

Procedural posture

The defendant appealed his criminal contempt conviction from Kings County Supreme Court, which had been rendered in 2015 and amended in 2025.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Evelyn Laporte, J.), rendered July 7, 2015, as amended July 14, 2025, convicting him of criminal contempt in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment, as amended, is affirmed.

The defendants failure to base his speedy trial motions on the specific contentions that he now raises on appeal renders those contentions unpreserved for appellate review (see CPL 470.05[2]; People v. Rosa, 171 A.D.3d 1099, 1100, 96 N.Y.S.3d 547; People v. Owens, 138 A.D.3d 1035, 28 N.Y.S.3d 630). In any event, the defendants contention that the total time chargeable to the People was more than six months because the original indictment was jurisdictionally defective is without merit. The error contained in the special informations supporting the original indictment—naming someone other than the defendant in one section—did not render the original indictment jurisdictionally defective (see People v. Gibson, 21 A.D.3d 577, 578, 799 N.Y.S.2d 340; People v. Williamson, 301 A.D.2d 860, 862, 755 N.Y.S.2d 443; People v. DiCarluccio, 168 A.D.2d 509, 510, 562 N.Y.S.2d 750).

The Supreme Court did not rule on the defendants application for a Dunaway hearing (Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824). By acquiescing in the lack of a ruling, the defendant abandoned that application, thereby rendering his present Dunaway claim unpreserved for appellate review (see CPL 470.05[2]; People v. Collier, 146 A.D.3d 1146, 1147, 46 N.Y.S.3d 276; People v. Bigelow, 68 A.D.3d 1127, 1128, 892 N.Y.S.2d 449). In any event, the defendants contention that he was entitled to a Dunaway hearing is without merit. The defendant failed to set forth factual allegations that supported his claim that the police lacked probable cause to arrest him (see People v. Mendoza, 82 N.Y.2d 415, 432, 604 N.Y.S.2d 922, 624 N.E.2d 1017; People v. Cameron, 74 A.D.3d 1223, 1224, 905 N.Y.S.2d 619; People v. Wright, 54 A.D.3d 695, 696, 863 N.Y.S.2d 253).

DILLON, J.P., BARROS, WOOTEN and ZAYAS, JJ., concur.