Counsel’s Authority to Waive Speedy Trial Rights and the Sufficiency of Incomplete Boykin Colloquies: Commentary on People v. Cole

I. Introduction

The Appellate Division, Third Department’s decision in People v. Cole, 2025 NY Slip Op 06930 (Dec. 11, 2025), addresses two recurrent procedural issues in New York criminal practice:

• How and by whom speedy trial rights – both statutory (CPL 30.30) and constitutional – may be waived; and
• When a guilty plea remains valid even though the plea court does not recite all of the Boykin rights during the plea colloquy.

The defendant, Matthew Cole, was prosecuted in Montgomery County for two separate drunk-driving incidents (April 2019 and March 2020). He ultimately entered into a “global disposition” resolving both cases by guilty pleas to driving while intoxicated (DWI), originally including a felony DWI that was later reduced to a misdemeanor after interim probation. He received conditional discharges on both convictions. Despite this favorable outcome, he appealed both judgments.

The Third Department’s opinion, authored by Justice Ceresia (with Aarons, J.P., Reynolds Fitzgerald, Fisher and McShan, JJ., concurring), reaffirms and clarifies important doctrine on: (1) counsel’s power to waive speedy trial claims, and (2) the sufficiency of a plea record where the judge does not enumerate every constitutional right identified in Boykin v Alabama. The court ultimately affirmed the judgments in toto.

II. Summary of the Opinion

A. Procedural Background

• Cole was indicted for:
  • Felony DWI (April 2019 incident), and
  • Misdemeanor DWI (March 2020 incident).
• He agreed to a global plea:
  • Plea to felony DWI for the April 2019 incident;
  • Plea to misdemeanor DWI for the March 2020 incident.
• After successful interim probation, his felony plea was vacated and replaced with a misdemeanor, and he ultimately received conditional discharges on both matters.
• On appeal, he argued:
  • His statutory speedy trial rights (CPL 30.30) and constitutional speedy trial rights were violated regarding the April 2019 case; and
  • Both guilty pleas were not knowing, intelligent, and voluntary because the plea court did not fully advise him of all Boykin rights during the plea colloquies.

B. Core Holdings

1. Statutory speedy trial (CPL 30.30): A written speedy trial waiver signed by defense counsel within the CPL 30.30 period is valid, does not require a particular form or sworn affirmation, and does not require the defendant’s personal consent. Because counsel’s waiver was valid and never revoked, there was no statutory speedy trial violation.
2. Constitutional speedy trial: Counsel may also waive a defendant’s constitutional speedy trial rights. In any event, applying the People v Taranovich factors, there was no constitutional speedy trial violation: delays were partly attributable to defendant’s own conduct and ongoing plea negotiations, defendant was not incarcerated during the delay, and no concrete prejudice was shown.
3. Plea validity & Boykin rights:
   • As to the April 2019 plea, the specific Boykin-based challenge was unpreserved because defendant filed motions to withdraw the plea but never raised this particular ground.
   • As to the March 2020 plea (where plea and sentence occurred in the same proceeding), the challenge was preserved and reviewable.
   • The plea was nonetheless valid even though the judge did not expressly mention the right to confront witnesses or confirm discussions with counsel: the overall record (including prior advisement of full Boykin rights at arraignment, active litigation, motion practice, extended plea negotiations, and a highly favorable plea bargain) demonstrated a knowing, intelligent, and voluntary plea.
4. All remaining claims were deemed meritless, and both judgments of conviction were affirmed.

III. Detailed Analysis

A. Statutory Speedy Trial (CPL 30.30) and Counsel’s Waiver

1. The Statutory Framework

Under CPL 30.30(1)(a), when a defendant is charged with a felony, the People must be ready for trial within six months of the filing of the first accusatory instrument (see also CPL 1.20[17]). Failure to do so—after subtracting excludable time—requires dismissal of the indictment.

In Cole’s April 2019 case, the People did not declare readiness until November 2020, approximately 19 months after charges were filed. On its face, that span appears far longer than the statutory six-month window, which is why the validity and effect of a defense waiver becomes central.

2. Counsel’s Ability to Waive Unripe Speedy Trial Rights

The opinion emphasizes and applies an important principle: defense counsel may waive a defendant’s unripe speedy trial rights, and such a waiver functions as an extension of the People’s time.

The court relies on People v Wheeler, 159 AD3d 1138, 1141 (3d Dept 2018), lv denied 31 NY3d 1123 (2018), which held:

“[S]uch a waiver is equivalent to an extension of time for the People to proceed with prosecution,” with any subsequent time being excluded from the speedy trial calculation.

In Cole, defense counsel signed a written waiver in July 2019—within the six-month CPL 30.30 period. This waiver, never revoked, effectively tolled the statutory clock. Consequently, the People’s November 2020 readiness did not violate CPL 30.30 because the intervening period was excluded by virtue of the waiver.

3. Form and Content of the Waiver

Cole attacked the waiver on formal grounds, arguing it was defective because:

• It was not in a particular form or sworn affirmation; and
• He allegedly did not personally consent to it.

Both arguments were squarely rejected:

• No particular form or sworn affirmation required: The court, citing People v Waldron, 6 NY3d 463, 469 (2006), makes clear that there is no requirement that a speedy trial waiver be in any special form, nor must it be memorialized in a sworn affirmation.
• Defendant’s personal consent not required: Relying again on Wheeler and earlier Third Department precedent such as People v Crogan, 237 AD2d 745 (3d Dept 1997), lv denied 90 NY2d 857 (1997), the panel reiterates that a speedy trial waiver “does not involve such a fundamental decision that it cannot be made by counsel” and that counsel may validly waive the right without the client’s explicit assent.

This is doctrinally significant because it underscores a line between rights that require a defendant’s personal waiver (e.g., the decision to plead guilty, to waive a jury trial, or to testify) and rights that fall within counsel’s domain of tactical or procedural control, such as waiving unripe CPL 30.30 claims.

4. Effect of a Non‑Revoked Waiver

The decision also implicitly confirms that once such a waiver is executed, its tolling effect continues unless and until it is explicitly revoked. The opinion notes that the waiver “was never revoked,” and from that premise concludes that there was no statutory speedy trial violation.

For practitioners, this means:

• Executing a 30.30 waiver can have long-lived consequences, potentially covering substantial future delay, unless affirmatively withdrawn; and
• Counsel and defendants should understand that a waiver is not a short, fixed extension unless drafted or limited as such.

5. Interaction with Recent Third Department Cases

Cole also cites and situates itself among recent Third Department speedy trial decisions:

• People v Reynolds, 239 AD3d 1098 (3d Dept 2025);
• People v Contompasis, 236 AD3d 138 (3d Dept 2025), lv denied 43 NY3d 1007 (2025).

Those citations reinforce the basic rule that the People must be ready within six months in felony cases, but Cole illustrates how that basic rule is substantively altered by defense waivers. The court uses those earlier decisions primarily to set the statutory baseline, then pivots to the waiver issue, resolving this case entirely on the effect of counsel’s waiver.

B. Constitutional Speedy Trial: Waiver and Taranovich

1. Counsel’s Waiver of Constitutional Speedy Trial Rights

Cole asserted a constitutional speedy trial violation alongside the statutory claim. The court responds in two steps.

First, it holds that the constitutional speedy trial claim was itself waived by counsel, citing People v Hinds, 217 AD3d 1138, 1141 (3d Dept 2023), lv denied 40 NY3d 951 (2023). Although the opinion does not lay out the full reasoning of Hinds, its citation signals that, at least in this Department, counsel’s waiver can encompass not only CPL 30.30 rights but also constitutional speedy trial arguments.

This is an important doctrinal clarification: it reinforces that the right to a speedy trial, while critical, is not placed on the same procedural plane as certain “personal” trial rights that can only be waived by the defendant on the record. Strategic control over timing and adjournments can belong to counsel even where constitutional dimensions exist.

2. Taranovich Analysis “In Any Event”

The court then proceeds, “in any event,” to evaluate the constitutional claim under the familiar five-factor test of People v Taranovich, 37 NY2d 442, 445 (1975), reaffirming that:

The factors include: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether there has been an extended period of pretrial incarceration; and (5) whether there is any indication that the defense has been impaired by reason of the delay.

The decision cross-references People v Hatch, 230 AD3d 908, 914 (3d Dept 2024), lv denied 42 NY3d 1020 (2024), illustrating continuity in how the Third Department applies the Taranovich factors.

3. Application of Taranovich to Cole

Applied to Cole, the factors weigh against a constitutional violation:

• Length of delay: The delay between the April 2019 charges and the People’s November 2020 readiness is substantial, but length alone is never dispositive under Taranovich.
• Reasons for delay: A significant portion of the delay resulted from:
  • Adjournments granted to allow Cole to obtain new counsel after he requested that his first three attorneys be relieved; and
  • Ongoing plea negotiations in which he participated.
  These are defense‑related causes of delay, which weigh against finding a violation.
• Nature of the charges: DWI charges, including a felony DWI, are serious but not of the same order as violent felonies or complex conspiracies. The opinion does not dwell on this factor, suggesting it was not determinative in either direction.
• Pretrial incarceration: Cole “remained at liberty” throughout. Lack of pretrial custody significantly weakens a constitutional speedy trial claim.
• Prejudice: Cole made no concrete showing of prejudice. His speculation that witnesses’ memories might have faded is dismissed as insufficient (citing People v Palmer, 207 AD3d 802, 804 [3d Dept 2022], lv denied 39 NY3d 941 [2022]; People v King, 62 AD3d 1162, 1163 [3d Dept 2009]).

The court also references People v Lende, 190 AD3d 1110, 1111 (3d Dept 2021), lv denied 36 NY3d 1121 (2021), emphasizing that the absence of demonstrable prejudice and the defendant’s liberty status weigh heavily against finding a constitutional violation.

Taken together, both the waiver principle and the adverse Taranovich balancing independently defeat Cole’s constitutional speedy trial argument.

C. Validity of Guilty Pleas and Partial Boykin Colloquies

1. The Boykin Requirement and New York’s Refinement

Under Boykin v Alabama, 395 US 238 (1969), a guilty plea is constitutionally valid only if the record shows a knowing and voluntary waiver of certain fundamental rights, commonly summarized as:

• The right to a jury trial;
• The right to confront witnesses; and
• The privilege against self-incrimination.

New York has incorporated Boykin through cases like:

• People v Tyrell, 22 NY3d 359, 365 (2013) (requiring an “affirmative showing on the record” of waiver of constitutional rights);
• People v Conceicao, 26 NY3d 375 (2015); and
• Subsequent Third Department decisions such as People v Edwards, 181 AD3d 1054 (3d Dept 2020), lv denied 35 NY3d 1026 (2020); People v Moore, 201 AD3d 1209 (3d Dept 2022); People v Kimball, 213 AD3d 1028 (3d Dept 2023), lv denied 40 NY3d 929 (2023); and People v Nichols, 194 AD3d 1114 (3d Dept 2021), lv denied 37 NY3d 973 (2021).

However, Conceicao clarified that New York does not require a ritualistic recitation of all three rights in every plea colloquy. Instead, courts must examine the totality of the circumstances to determine whether the plea was knowing, intelligent, and voluntary. The Court of Appeals has even upheld pleas “where none of the Boykin rights were specifically recited” (Conceicao, 26 NY3d at 383–84).

Cole is a textbook application of that totality-of-the-circumstances approach.

2. Preservation: Different Treatment for the Two Pleas

The court carefully distinguishes between:

• The plea related to the April 2019 incident; and
• The plea related to the March 2020 incident.

For the April 2019 plea:

• Cole moved twice to withdraw his plea before sentencing, but did not raise the specific Boykin-based argument now pressed on appeal.
• Under cases like People v Simpson, 196 AD3d 996, 998 (3d Dept 2021), lv denied 37 NY3d 1029 (2021), and People v Simon, 166 AD3d 1075, 1076 (3d Dept 2018), a defendant must assert a specific ground in a motion to withdraw the plea in order to preserve that ground for appellate review.
• Because he did not, the claim that his plea was involuntary due to incomplete Boykin warnings was deemed unpreserved and not reviewable on the merits.

For the March 2020 plea:

• Plea and sentencing occurred in the same proceeding, leaving no practical opportunity for a motion to withdraw the plea.
• In such circumstances, per People v Carl, 188 AD3d 1304, 1306 (3d Dept 2020), lv denied 37 NY3d 954 (2021), a defendant is not barred by preservation rules from directly challenging the voluntariness of the plea on appeal.
• The Third Department therefore reached the merits of the Boykin claim for the March 2020 plea.

3. What the Plea Court Did and Did Not Say

At the March 2020 plea, County Court (Brown, J.):

• Advised Cole of:
  • His right to a jury trial;
  • His right to remain silent;
  • His right to present witnesses; and
  • The People’s obligation to prove guilt beyond a reasonable doubt.
• Confirmed that he understood the terms of the plea and that he was not coerced into accepting it.

However:

• The court did not expressly advise him of the right to confront witnesses during the plea colloquy; and
• The court did not explicitly confirm that he had discussed forfeiting trial-related rights with his attorney.

Cole argued that these omissions rendered his plea not knowing, intelligent, and voluntary.

4. The Role of the Overall Record: Active Litigation and Prior Warnings

The Third Department rejected that argument, emphasizing the broader record:

• The case was “actively litigated,” with motion practice and ongoing plea negotiations extending over many months.
• Cole changed counsel multiple times, but throughout he had “ample opportunity” to consult with his attorneys.
• The plea agreement was highly advantageous: multiple felony charges were reduced to misdemeanors and he received no jail time. Cole himself described the resolution as “a gift from God.”
• Crucially, in a footnote, the court notes that at his arraignment on the indictments, Cole had been advised of all his Boykin rights, including the right of confrontation.

This last point is pivotal: while the confrontation right was not explicitly mentioned at the plea hearing, it had been explained to Cole at an earlier, critical stage in the same case. New York’s totality-of-the-circumstances approach allows the appellate court to consider this prior advisement in evaluating the voluntariness of the plea.

5. Reliance on Conceicao and Howard: Avoiding “Form Over Substance”

Drawing on Conceicao, the Third Department reiterates that:

• A plea is not automatically invalid because the judge fails to enumerate every single Boykin right.
• The critical question is whether the record, taken as a whole, sufficiently demonstrates a voluntary and informed waiver.

The opinion then quotes People v Howard, 190 AD3d 1108, 1109 (3d Dept 2021):

“In these circumstances, reversal would appear to be elevating form over substance; there is simply no basis for expecting that, had [County] Court uttered those few additional words of warning, defendant may have chosen to reject the favorable plea offer.”

This passage encapsulates the court’s practical approach:

• The plea record demonstrated that Cole understood he was giving up a trial and trial-related rights, that he had substantial time and opportunity to consult counsel, and that he received a significant benefit.
• There was no realistic possibility that a more detailed recitation of rights would have changed his decision.

Thus, the guilty plea is upheld, consistent with prior Third Department cases that had approved pleas despite partial or non-exhaustive enumerations of Boykin rights, such as:

• People v Babilenko, 204 AD3d 1225, 1226–27 (3d Dept 2022), lv denied 38 NY3d 1069 (2022);
• People v Nichols, 194 AD3d at 1115.

The decision confirms that New York appellate courts will not invalidate a plea merely because a single Boykin right (such as confrontation) is omitted from the plea colloquy, so long as the broader record shows a fully informed and voluntary waiver.

D. Impact and Doctrinal Significance

1. Speedy Trial Waivers in Practice

Cole strengthens and clarifies several practice points:

• Counsel‑controlled tactical choice: Speedy trial waivers, both statutory (CPL 30.30) and constitutional, are treated as within counsel’s domain of strategic decision-making. Defendants cannot easily undo or disown waivers executed by their attorneys.
• No special formality: Written waivers need not be in affidavit form and do not require the defendant’s personal signature or sworn statement unless some other statute or rule so provides.
• Duration of waiver: Unless expressly limited or revoked, such waivers can effectively suspend the speedy trial clock for extended periods, which can dramatically alter the 30.30 calculus.

This will influence both defense and prosecution strategy:

• Defense counsel may be more cautious in offering broad, open-ended waivers, and may consider time-limited or conditional waivers instead.
• Prosecutors and courts can rely on counsel-executed waivers without insisting on a contemporaneous, on-the-record personal allocution from the defendant.

2. Guilty Pleas and the “Totality of the Circumstances” Standard

On plea practice, Cole reinforces New York’s flexible, context-sensitive standard:

• No “magic words” requirement: Judges are not required to recite each Boykin right by name, provided the record as a whole clearly shows that the defendant understood what trial rights he was waiving and that he chose to waive them voluntarily.
• Use of the entire case record: Appellate courts may consider advisements given at arraignment and other proceedings, not just the narrow plea allocution transcript.
• Weight of favorable plea bargains: Where a defendant receives a substantially beneficial plea (e.g., reduction of felonies to misdemeanors, no incarceration), the appellate courts are reluctant to disturb the plea in the absence of evidence of coercion, confusion, or misunderstanding.

For courts and practitioners, Cole suggests that plea canvasses should remain robust and explicit, but that inadvertent omissions of a specific right will not necessarily invalidate otherwise well-supported pleas, especially when earlier proceedings included full Boykin warnings.

3. Preservation Requirements

Cole also adds to the law on preservation:

• When a defendant has time to move to withdraw a plea and does so, the failure to include a specific voluntariness ground will bar appellate review of that ground later.
• When sentencing follows immediately upon the plea, the defendant may attack the plea’s voluntariness on appeal without being foreclosed by preservation rules.

This encourages defendants and counsel to raise all known grounds in any pre‑sentence motion to withdraw a plea and clarifies the procedural posture in which appellate review remains available.

IV. Complex Concepts Simplified

A. Statutory vs. Constitutional Speedy Trial Rights

• Statutory right (CPL 30.30): A time-limit rule created by statute. It requires the prosecution to be “ready for trial” within a specified period (e.g., six months for felonies). It is largely a clock‑checking exercise with defined exclusions.
• Constitutional right: Rooted in the Sixth Amendment (and the New York Constitution). It focuses not only on time but also on the fairness of the process: why the delay occurred, whether the defendant was incarcerated, and whether the delay hurt the defense. This is evaluated under the multi-factor Taranovich test.

B. Boykin Rights and Plea Colloquy

• Boykin rights:
  • Right to trial by jury;
  • Right to confront (cross-examine) the prosecution’s witnesses; and
  • Privilege against self-incrimination (the right to remain silent).
• Plea colloquy: The conversation in court when a defendant pleads guilty, where the judge ensures that the defendant understands the plea, the rights being waived, and the consequences of the plea.
• Totality-of-the-circumstances approach: Instead of requiring that the judge list each right one by one, New York courts examine everything that happened in the case (earlier warnings, consultations with counsel, sophistication of the defendant, plea benefits) to see if the defendant’s waiver was informed and voluntary.

C. Other Key Terms

• Global disposition: A single plea agreement resolving multiple indictments or incidents at once.
• Interim probation: A period during which the defendant is supervised (like probation) before final sentencing; successful completion can lead to a better final outcome (e.g., reduction from felony to misdemeanor).
• Conditional discharge: A non‑incarcerative sentence in which judgment is entered but the defendant is released under conditions (e.g., no new arrests, compliance with treatment); violation may result in re‑sentencing.

V. Conclusion

People v. Cole provides a clear and instructive reaffirmation of two important procedural doctrines in New York criminal law:

1. Counsel’s authority to waive speedy trial rights – both statutory and constitutional – even without the defendant’s personal, on-the-record consent, and without adherence to any special formality, so long as the waiver is clear and unrevoked.
2. The sufficiency of guilty pleas despite incomplete plea colloquies, where:
   • the defendant has been previously advised of full Boykin rights (e.g., at arraignment);
   • the case has been actively litigated with counsel over an extended period; and
   • the defendant receives a highly favorable plea bargain with no indication of coercion or misunderstanding.

By affirming the convictions, the Third Department underscores a pragmatic approach: it will not lightly disrupt plea agreements or dismiss indictments where experienced counsel has exercised tactical control and where the overall record demonstrates that the defendant understood both his rights and the benefits of his bargain.

At the same time, the decision signals to defense practitioners the need for careful, fully informed decision-making about speedy trial waivers and for raising all pertinent grounds in any motion to withdraw a plea. For trial courts, it confirms that while explicit Boykin warnings remain the best practice, pleas will be judged on their substantive fairness and the overall record, not on the presence or absence of “magic words” alone.