| People v Mears |
| 2008 NY Slip Op 08021 [55 AD3d 439] |
| October 23, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Steven Mears, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Micki A. Scherer, J., on speedy trial motion;Joan C. Sudolnik, J., at jury trial and sentence), rendered August 22, 2005, convicting defendantof assault in the first degree, and sentencing him, as a second violent felony offender, to a term of18 years, unanimously affirmed.
Defendant's challenge to the sufficiency of the evidence is unpreserved and we decline toreview it in the interest of justice. As an alternative holding, we also reject it on the merits.Furthermore, the verdict was not against the weight of the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury'sdeterminations concerning credibility.
The court properly denied defendant's speedy trial motion. We reject defendant's assertionthat all of the time between the declaration of a mistrial at defendant's first trial and thecommencement of the second trial was chargeable to the People because they never declaredtheir readiness. On the contrary, adjournments necessitated by trial counsel's numerous absencesand by defendant's trial on other charges were excludable (see CPL 30.30 [4] [a], [f];People v Reed, 19 AD3d 312, 318 [2005], lv denied 5 NY3d 832 [2005];People v Mannino, 306 AD2d 157 [2003], lv denied 100 NY2d 643 [2003];People v Brown, 195 AD2d 310, 311 [1993], lv denied 82 NY2d 891 [1993]).Additionally, the adjournment from May 19, 2004, the day of the declaration of the first mistrial,to June 2, 2004, the next court date, was set down for "control purposes" and, as defendantconceded, this period was not chargeable to the People, who were entitled to a reasonable time toprepare for retrial (CPL 30.30 [4] [a]; People v Sonds, 287 AD2d 319 [2001], lvdenied 97 NY2d 709 [2002]).
The court properly denied without a hearing defendant's CPL 330.30 (3) motion to set asidethe verdict on the ground of newly discovered evidence, based on the recantation affidavit of oneof the prosecution witnesses. This witness's affidavit was inherently unreliable, especially as shelived in the same building as defendant's girlfriend, and as it contradicted her statement on thenight of the incident as well as her testimony before the grand jury and at defendant's first andsecond trials[*2](see People v Salemi, 309 NY 208,215-216 [1955], cert denied 350 US 950 [1956]; People v Cintron, 306 AD2d151 [2003], lv denied 100 NY2d 641 [2003]; People v Bermudez, 243 AD2d 367[1997], lv denied 91 NY2d 923 [1998]). Defendant's claim under Brady vMaryland (373 US 83 [1963]) is based on the same unreliable affidavit. In any event, evenassuming the truth of the allegations, the Brady claim is still without merit.
Defendant's arguments concerning the grand jury presentation are meritless. Defendant'schallenge to the trial court's justification charge is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we also reject it on the merits.
We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Saxe,Friedman, Sweeny and Acosta, JJ.