| People v Robinson |
| 2008 NY Slip Op 00547 [47 AD3d 847] |
| January 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesRobinson, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, andTerry-Ann Llewellyn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.),rendered January 31, 2005, convicting him of rape in the first degree, assault in the seconddegree, assault in the third degree, and bail jumping in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
On September 10, 2003 the prosecutor requested a two-week adjournment, withoutspecifying the reason for it. In May 2004 the defendant moved pursuant to CPL 30.30 to dismissthe indictment on speedy trial grounds, arguing, inter alia, that the People were chargeable withthe two-week period from September 10, 2003 through September 24, 2003. In opposition, thePeople argued, in relevant part, that the subject adjournment was requested because certain DNAtests, being performed pursuant to a court order, had not yet been completed. By order dated June21, 2004, the court denied the motion to dismiss, finding, inter alia, that "delays occasioned bythe necessity of obtaining the results of DNA testing constitute an exceptional circumstance sothat the time should not be charge [d] to the People."
On appeal, the defendant contends that the court erred in considering the reason proffered bythe People for the adjournment. He argues that the People were obligated to specify the basis forany statutory exclusion (see CPL 30.30 [4]) at the time the adjournment was requested,and not, as here, for the first time in papers submitted in opposition to a motion to dismiss. Thisclaim, which [*2]was never brought to the attention of the trialcourt, is unpreserved for appellate review (see People v Luperon, 85 NY2d 71, 78[1995]) and, in any event, is without merit.
Where, as here, the reason for an adjournment as stated in the People's response to a speedytrial motion is corroborated by the record, it may be considered even though it was not articulatedby the prosecutor when the adjournment was requested (see People v Chu Zhu, 245AD2d 296 [1997]; cf. People vWaldron, 6 NY3d 463, 468 [2006]). Moreover, the court correctly determined that aperiod of time necessary to obtain the results of DNA testing in a rape case is excludable underthe speedy trial statute as a "delay occasioned by exceptional circumstances" pursuant to CPL30.30 (4) (g) (see People v Williams, 244 AD2d 587 [1997]).
The defendant's contention that improper remarks made by the prosecutor during summationdeprived him of a fair trial is unpreserved for appellate review (see People v Tonge, 93NY2d 838, 839-840 [1999]; People v Dien, 77 NY2d 885 [1991]). In any event, thechallenged remarks did not deprive the defendant of a fair trial (see People v Hopkins, 58NY2d 1079, 1083 [1983]; People v Galloway, 54 NY2d 396 [1981]; People v Barber, 13 AD3d 898,900 [2004]; People v Martin, 149 AD2d 534 [1989]).
The defendant was provided with meaningful representation (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).Mastro, J.P., Fisher, Carni and McCarthy, JJ., concur.