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The People of the State of New York v. Joseph D. Angione

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


May 21, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
JOSEPH D. ANGIONE,
APPELLANT.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Ira Margulis, J.), rendered December 10, 2010.

People v Angione (Joseph)

Decided on May 21, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., PESCE and RIOS, JJ

The judgment convicted defendant, upon a jury verdict, of resisting arrest and disorderly conduct.

ORDERED that the judgment of conviction is affirmed.

On April 14, 2009, defendant was charged with resisting arrest (Penal Law § 205.30) and disorderly conduct (Penal Law § 240.20 [1]). On September 30, 2009, defendant moved to dismiss the charges on the ground that he had been denied his statutory right to a speedy trial (CPL 30.30 [1] [b]). Defendant argued that, while the People had declared their readiness on several occasions, the People's announcement that they were not ready on September 17, 2009, because they were "in the process of getting the [arresting] police officer's medical records," rendered their earlier statements of readiness illusory and, thus, the People had exceeded the statutory speedy trial time limit. The People opposed the motion, asserting that they had announced not ready on September 17, 2009, not because they needed the arresting police officer's medical records to proceed to trial, but because they were still within the statutory time limit. Similarly, on September 24, 2009, the People sought an adjournment until September 30, 2009, because they were still within the statutory time limit and four of the six officers scheduled to testify were on their regularly scheduled day off. Thus, the People maintain that they were within the statutory time limit. On December 14, 2009, the Criminal Court (Deborah Stevens Modica, J.) denied the motion. Thereafter, a jury trial was held and defendant was convicted of the charged offenses. Prior to sentencing, defendant moved to set aside the verdict and for a new trial pursuant to CPL 330.30. The Criminal Court denied the motion.

Contrary to defendant's contention, the People's request for an adjournment on September 17, 2009 did not render their previous declarations of readiness illusory. There is no indication that the adjournment was sought because the arresting officer was unavailable to testify and had been since the incident. Rather, the People sought the adjournment within the statutory time limit to obtain the arresting officer's medical records, which records were not required to proceed to trial. It is within the People's discretion to determine how they want to present their case. The fact that the People subsequently requested another adjournment on September 24, 2009 similarly did not render their previous announcements of readiness illusory (see People v Douglas, 264 AD2d 671, 671-672 [1999]). On that date, the People, still well within the statutory time limit, answered not ready, as it was a regular day off for four of their police officer witnesses. Thus, the Criminal Court properly found that the People were within the 90-day statutory time limit (CPL 30.30 [1] [b]).

With respect to defendant's CPL 330.30 (1) motion, defendant's arguments regarding the alleged instances of prosecutorial misconduct and the preclusion of the evidence of the arresting officer's alleged statement are unpreserved. In any event, none of these contentions constitute grounds for reversal. With respect to the alleged instances of prosecutorial misconduct, although some of the prosecutor's questions and comments on cross-examination and in summation were improper, they constituted harmless error (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v World, 89 AD3d 966 [2011]; People v Masaguilar, 86 AD3d 619 [2011]), as the evidence of defendant's guilt was overwhelming and there is no significant probability that the questions and comments contributed to defendant's convictions. Moreover, the Criminal Court's determination that the arresting officer's alleged statement, made after defendant was already arrested, was too speculative to be probative of the arresting officer's bias (see People v Monroe, 30 AD3d 616 [2006]) or state of mind leading up to and during defendant's arrest (see People v Reynoso, 73 NY2d 816, 819 [1988]; People v Gibian, 76 AD3d 583, 586 [2010]; see generally People v Tosca, 98 NY2d 660 [2002]; People v Kass, 59 AD3d 77, 85 [2008]) was not an improper exercise of its discretion (see generally People v Taylor, 40 AD3d 782 [2007]).

Accordingly, the judgment of conviction is affirmed.

Weston, J.P., Pesce and Rios, JJ., concur. Decision Date: May 21, 2012

20120521

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