Richard M. Greenberg, Office of the Appellate Defender, New
York (Rosemary Herbert of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Dana Poole of
counsel), for respondent.
Acosta, J.P., Richter, Andrias, Kahn, Gesmer, JJ.
Supreme Court, New York County (Maxwell Wiley, J. at speedy
trial motion; Bruce Allen, J. at jury trial and sentencing),
rendered June 28, 2013, as amended July 18, 2013, convicting
defendant of grand larceny in the fourth degree, criminal
contempt in the first degree, three counts of criminal
contempt in the second degree and two counts of tampering
with a witness in the fourth degree, and sentencing him, as a
second felony offender, to an aggregate term of two to four
years, unanimously affirmed.
court properly denied defendant's speedy trial motion. We
find that only 28 of the days disputed by the parties on
appeal should be charged to the People, which yields a total
of 90 days, well under the applicable six-month period.
argument concerning the adjournment from August 1 to
September 5, 2012 is unpreserved, and we decline to review it
in the interest of justice. As an alternative holding, we
find that the period is excludable because the case was not
on for trial on August 1, given that defendant was still in
need of time to complete his trial preparation (see
People v Baumann, 38 A.D.3d 452, 453 [1st Dept 2007],
lv denied 9 N.Y.3d 840');">9 N.Y.3d 840 ).
adjournment from October 3 to 10, 2012 is excludable because
defense counsel was trying another case (see People v
Barden, 27 N.Y.3d 550, 555 ). It would have been a
physical impossibility for defense counsel to try both cases
simultaneously, and the time is thus excludable
notwithstanding the People's own lack of readiness
(see People v Mannino, 306 A.D.2d 157, 158 [1st Dept
2003], lv denied, 100 N.Y.2d 643');">100 N.Y.2d 643 ).
the first six days of the adjournment from October 10 to 24,
2012 are excludable because defense counsel was still on
trial, and only the remaining eight days are properly
chargeable to the People.
the first day of the adjournment from October 24 to November
7, 2012 is excludable. On October 24 the People stated that
they were not ready, and requested a two-week adjournment to
present additional charges against defendant to a grand jury.
The next day, however, the People filed a certificate of
readiness. On November 7, the People again stated that they
were not ready, explaining that they had been unable to
complete the grand jury presentation as a result of
conditions caused by Hurricane Sandy. The People thus
adequately explained on the record the reasons for the change
from readiness on October 25 to unreadiness on November 7
(see People v Brown, 28 N.Y.3d 392');">28 N.Y.3d 392 ).
entire adjournment from November 7 to 26, 2012 chargeable to
the People, and their arguments to the contrary are
adjournments from December 5, 2012 to February 6, 2013, and
from that date to March 20, 2013, are excludable as
"reasonable period[s] of delay resulting from other
proceedings concerning the defendant, including... pre-trial
motions" (CPL 30.30[a]). These periods of delay
included those resulting from the People's motion to
consolidate the two indictments involved in this case
(see People v Kelly, 33 A.D.3d 461');">33 A.D.3d 461 [1st Dept 2006],
lv denied 7 N.Y.3d 926');">7 N.Y.3d 926 ), from defendant's
omnibus motion on the second indictment (see People v
Brown, 99 N.Y.2d 488, 492 ), and from the
People's need for "a reasonable time to prepare
after the court's decision on motions" (People v
Davis, 80 A.D.3d 494, 494-95 [1st Dept 2011]).
regard to the defendant's challenges to the
prosecutor's summation, the only one that is even
arguably preserved is his claim that the prosecutor
improperly asked the jurors to consider the victim's
testimony as if it came from a "friend" in a casual
conversation. We find that this remark was permissible
rhetoric that did not vouch for the witness, and was harmless
in any event. By failing to object, by making generalized
objections, or by failing to request further relief after the
court took curative actions, defendant failed to preserve his
other claims and we decline to review them in the interest of
justice. As an alternative holding, we find that the
prosecutor's summation did not deprive defendant of a
fair trial (see People v Overlee, 236 A.D.2d 133');">236 A.D.2d 133
[1st Dept 1997], lv denied 91 N.Y.2d 976');">91 N.Y.2d 976 ;
People v D'Alessandro, 184 A.D.2d 114, 118-119
[1st Dept 1992], lv denied 81 N.Y.2d 884');">81 N.Y.2d 884 ),
and that any errors were harmless.
legal sufficiency claim regarding his witness tampering
convictions is unpreserved, and we decline to review it in
the interest of justice. As an alternative holding, we reject
it on the merits. We also find that the verdict was not
against the ...