| People v Brunner |
| 2009 NY Slip Op 08054 [67 AD3d 464] |
| November 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Brunner, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 9, 2006,as amended June 2, 2006, convicting defendant, after a jury trial, of criminal sale of a controlledsubstance in the third degree, criminal possession of a controlled substance in the third degreeand resisting arrest, and sentencing him, as a second felony offender, to an aggregate term of4½ years, unanimously affirmed.
Defendant received effective assistance of counsel under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]). Regardless of whether counsel should have made aspeedy trial motion, defendant was not prejudiced by the lack of such a motion. Upon our reviewof the periods of delay at issue, we conclude that there was not enough includable time to requiredismissal of the indictment.
The court properly denied defendant's request for missing witness charges as to severalofficers, since none of them would have provided material, noncumulative testimony (seegenerally People v Gonzalez, 68 NY2d 424 [1986]). A supervising officer was not presentduring the drug sale, and his testimony about events that came after the sale would have beencumulative to that of an officer who testified (see e.g. People v Epps, 8 AD3d 85 [2004],lv denied 3 NY3d 673 [2004]). The record fails to support defendant's assertion that twoother uncalled officers may have been in a position to observe the sale (see People vTavarez, 288 AD2d 120 [2001], lv denied 97 NY2d 709 [2002]).
The court's Sandoval ruling, permitting only limited use of defendant's prior record,[*2]balanced the appropriate factors and was a proper exercise ofdiscretion (see People v Hayes, 97 NY2d 203 [2002]; People v Walker, 83 NY2d455, 458-459 [1994]). Concur—Tom, J.P., Saxe, Renwick, DeGrasse and Richter, JJ.