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People v. Oliveri

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 3, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOHN OLIVERI, JR., DEFENDANT-APPELLANT.

Judgment, Supreme Court, Bronx County (Steven L. Barrett, J. at speedy trial motion; Edward M. Davidowitz, J. at non-jury trial and sentence), rendered July 19, 2004, as amended on or about March 17, 2009 following remand from this Court, convicting defendant of tampering with a witness in the fourth degree, and sentencing him to a term of 1 year, unanimously affirmed.

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.

Gonzalez, P.J., Sweeny, Nardelli, Buckley, JJ.

24/03

The motion court properly excluded the period from December 16, 2002 (when a felony complaint was filed in the instant case) through February 3, 2003 (when the People answered ready), and that ruling is dispositive of the speedy trial motion. Defendant was on trial on a homicide indictment through January 17, 2003 and was sentenced in that case on March 17, 2003. "[A]ll proceedings up until the imposition of sentence are excludable" pursuant to CPL 30.30(4)(a) (People v Boyd, 189 AD2d 433, 437 [1993], lv denied 82 NY2d 714 [1993]). Furthermore, the delay was reasonable. With respect to the period up to the January 17 verdict in the homicide trial, it would have been impractical for defendant to be on trial in two separate cases at the same time, and with respect to the period from the verdict to February 3, that was "a reasonable period of delay resulting from... trial of other charges" [emphasis added] within the meaning of CPL 30.30 (4)(a) (see People v Osorio, 39 AD3d 400 [2007], lv denied 9 NY3d 925 [2007]; People v Fleming, 13 AD3d 102 [2004], lv denied 5 NY3d 788 [2005]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091203

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