| People v Parrish |
| 2010 NY Slip Op 01821 [71 AD3d 697] |
| March 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Reginald Parrish, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Cohen,J.), rendered July 10, 2007, convicting him of attempted murder in the second degree, gangassault in the first degree, and assault in the first degree (two counts), upon a jury verdict, andimposing sentence. The appeal brings up for review the denial by the Supreme Court,Westchester County (Adler, J.), after a hearing, of those branches of the defendant's omnibusmotion which were pursuant to CPL 30.30 to dismiss the indictment on the ground that he wasdeprived of his statutory right to a speedy trial, to dismiss the indictment on the ground that hewas deprived of his constitutional right to a speedy trial, and to suppress identification evidence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt (see People v Calabria, 3 NY3d 80, 82 [2004]). Although thecomplainant was subjected to suggestive photographic array procedures, he had an independentsource for his in-court identification of the defendant (see People v Dell, 11 AD3d 631 [2004]; People v Paris, 2 AD3d 881[2003]). In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]), since the complainant's identification testimony was not inherently incredibleor unworthy of belief.
The County Court properly charged the jury on avoidance of police as consciousness of guilt(see People v Yazum, 13 NY2d 302, 304 [1963]; People v Robinson, 10 AD3d 696 [2004]; People vGuthrie, 157 AD2d 668, 670 [1990]; CJI2d[NY] Consciousness of Guilt). The prosecutor'srelated comment during summation constituted fair comment on the evidence (see People vAshwal, 39 NY2d 105, 109 [1976]; People v Holland, 174 AD2d 508 [1991]).[*2]
The hearing court properly denied that branch of thedefendant's omnibus motion which was to dismiss the indictment on the ground that he wasdeprived of his statutory right to a speedy trial (see CPL 30.30). At the hearing, thePeople established that sufficient time was excludable because the defendant's location could notbe determined by due diligence (see CPL 30.30 [4] [c] [i]; People v Luperon, 85NY2d 71, 79 [1995]; People v Grey, 259 AD2d 246, 249 [1999]; cf. People vHill, 71 AD3d 692 [2010] [decided herewith]; People v Devore, 65 AD3d 695 [2009]). In addition, uponbalancing all the factors to be considered in connection with the defendant's constitutionalspeedy-trial claim (see People v Taranovich, 37 NY2d 442, 445 [1975]), we find that thedefendant's right to a speedy trial was not violated (see People v Singer, 44 NY2d 241,254 [1978]; People v Allah, 202 AD2d 599 [1994]). Mastro, J.P., Dickerson, Belen andRoman, JJ., concur.