| People v Robinson |
| 2009 NY Slip Op 07881 [67 AD3d 1042] |
| November 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eddie M.Robinson, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Daley, J.),rendered November 19, 2007, upon a verdict convicting defendant of the crime of assault in thesecond degree.
Defendant was convicted of assault in the second degree for assaulting a 42-year-old woman(hereinafter the victim) whose sister was engaged in a custody battle with defendant. On August18, 2005, custody was awarded to the victim's sister and that afternoon defendant encounteredthe victim, who was walking on a street in defendant's neighborhood in the City of Binghamton,Broome County. After a verbal exchange, defendant punched the victim repeatedly until she fellto the ground near the curb where he then kicked her with steel toed boots and ultimately steppedviolently on her leg, breaking her tibia.
Defendant was arrested by police at the scene and, after processing, was released on his ownrecognizance on August 20, 2005.[FN1]On January 6, 2006, defendant was indicted on one [*2]count ofassault in the second degree and the People effectively indicated their readiness for trial thatsame day by filing a statement with County Court that was copied to defendant's counsel (seePeople v Kendzia, 64 NY2d 331, 336-337 [1985]; People v Sutton, 199 AD2d 878,879-880 [1993]). At his arraignment on February 7, 2006, defendant entered a plea of not guiltyand the People again indicated their readiness for trial in a pretrial notice.
Defendant remained at liberty until April 1, 2006, when he was arrested for criminalpossession of a controlled substance and remanded to the Broome County jail. On April 21,2006, while in custody at the Broome County jail, defendant assaulted a fellow inmate, blindinghim in one eye. On May 19, 2006, defendant's counsel requested an indefinite adjournment withrespect to the 2005 assault pending action on the 2006 inmate assault which was then proceedingto the grand jury.
From September 4 through September 6, 2007, a jury trial was held on the 2005 assaultregarding the victim, after which defendant was found guilty of assault in the second degree andsentenced to a prison term of seven years and five years of postrelease supervision, to be servedconsecutive to the sentence on his prior convictions for the inmate assault. Defendant nowappeals, alleging speedy trial, fair trial, evidentiary and predicate sentencing errors. We affirm.
Defendant's pretrial motion to dismiss was properly denied.[FN2]As defendant was [*3]arraigned on a felony complaint on orabout August 18, 2005, the People had 183 days to declare their readiness for trial (seeCPL 30.30 [1] [a]; People v Cortes, 80 NY2d 201, 208 n 3 [1992]). Generally, theburden is on the People to establish their entitlement to exclude any prereadiness delays from thecalculation under a CPL 30.30 motion and the burden is on a defendant to prove that anypostreadiness delays that directly implicate the People's ability to proceed with trial arechargeable to the People, unless the People failed to satisfy their burden to ensure that the recordis sufficiently clear as to who is chargeable for an adjournment (see People v Cortes, 80NY2d 201, 210, 215-216 [1992]). No argument is made for excluding any portion of theprereadiness period of approximately 141 days. Turning to whether any postreadiness delays arechargeable to the People (see People vNash, 64 AD3d 878, 880 [2009]), the record lacks any indication that the People werenot prepared to proceed with trial at any time (see People v Carter, 91 NY2d 795, 799[1998]). Accordingly, defendant failed to sustain his burden to establish a CPL 30.30 violation.
Turning to defendant's constitutional claim, we note that the delay from his initialarraignment to trial was approximately 25 months, of which defendant was released on his ownrecognizance for seven months. Defendant was only taken into custody again upon his arrest foranother crime, whereupon he soon committed another vicious assault while in custody for whichhe was promptly tried and convicted, and there is at least some evidence indicating thatdefendant's counsel agreed to adjourn trial indefinitely on this assault charge in order to proceedon the inmate assault charges. We also note the lack of any indication that defendant wasimpaired in the presentation of his defense by the delay. Balancing the foregoing factors as wemust, we are convinced that defendant suffered no constitutional injury (see People vTaranovich, 37 NY2d 442, 445 [1975]).
We find equally unavailing defendant's contention that questioning of witnesses by CountyCourt tainted the trial. As defendant concedes, this issue was not preserved for our review(see People v Charleston, 56 NY2d 886, 887-888 [1982]). However, even were we toconsider the merits, the trial transcript reveals that the court engaged in limited and balancedquestioning primarily constrained to clarifying evidence already placed on the record. Suchquestioning by the court was well within its functions of facilitating the orderly and expeditiousprogress of the trial and protecting the record by clarifying confusing testimony and insuring thatproper evidentiary foundations are made (see People v Yut Wai Tom, 53 NY2d 44,56-58 [1981]).
Nor can we agree with defendant that being required to appear before the jury in restraintsdeprived him of a fair trial. County Court described defendant as "a large individual, very strongand presents on occasion when in court somewhat of a threatening posture. He is intimidating byhis very size I think it's fair to say." Defendant had a history of physical violence even when incustody and at times refused to appear for scheduled court conferences or cooperate withassigned counsel. The court gave an instruction to the potential jury pool to draw no inferencefrom the presence of security or defendant's restraints, and permitted defendant to questionwitnesses from counsel's table. The record justifies County Court's refusal to order defendant'srestraints removed (see People v Rouse, 79 NY2d 934, 935 [1992]; People vMendola, 2 NY2d 270, 277 [1957]).
Finally, we find that defendant was properly sentenced as a second felony offender. Prior tosentencing in this case, defendant was sentenced on the inmate assault as a second felonyoffender based on a prior conviction in New Jersey for the felony-grade crime of attemptedhomicide (criminal attempt to commit murder). County Court properly determined that it was[*4]bound by the prior determination that defendant was a secondfelony offender (see CPL 400.21 [8]; People v Loughlin, 66 NY2d 633, 635-636[1985]; People v Alston, 1 AD3d627, 630 [2003], lv denied 1 NY3d 594 [2004].
We have considered defendant's remaining contentions and find they lack merit.
Rose, J.P., Kane, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The record contains a felonycomplaint against defendant by patrolman James A. Lewis dated August 18, 2005 and theaffidavit of defendant's attorney submitted in support of defendant's speedy trial motion statesthat "the defendant was arrested on August 18, 2005 and thereafter arraigned in Binghamton CityCourt on the said charges. He was released on his own recognizance."
Footnote 2: Initially, there exists aprocedural complication not addressed by the parties. Defendant's counsel made a speedy trialmotion on defendant's behalf, which County Court denied. Subsequently, defendant was allowedto proceed pro se (with his former counsel as standby counsel) and defendant tendered a secondspeedy trial motion, pro se. The pro se motion was discussed on the record immediately prior tojury selection, and the court initially refused to consider it, but then relented and accepted itconditioned upon notice to the People. The court refused to delay jury selection or the trial toconsider the pro se motion. Although it is not clear whether the motion was served on the Peopleand no responding papers are contained in the record, the trial transcript suggests that copieswere provided, and the People have not expressly addressed defendant's pro se motion in theirbrief on appeal. The record does not reflect any express determination of the pro se motion bythe court, although its denial is implicit in that the indictment was not dismissed. In any event,defendant's affidavit in support of his pro se motion does not offer any relevant factualstatements that would support a result different than that warranted by the original motion madeby defendant's attorney.