| People v Mungro |
| 2010 NY Slip Op 05450 [74 AD3d 1902] |
| June 18, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelMungro, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered June30, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of robberyin the first degree (Penal Law § 160.15 [4]), defendant contends that his statutory right to aspeedy trial was violated (see CPL 30.30). We reject that contention. Defendant couldnot be located following the robbery, and he was indicted for that crime in absentia on October25, 2004. The People declared their readiness for trial three days later. Defendant thereafter waslocated in Columbus, Ohio and, on July 8, 2005, federal marshals attempted to arrest him thereon an Erie County warrant that had been issued in this case. Defendant, however, crashed hisvehicle into the federal marshals' vehicle and escaped. He was arrested in Ohio three days later,on July 11, 2005, and was charged in Ohio with federal and Ohio crimes as a result of injuringthe federal marshals in the course of his escape. The Ohio charges were resolved on September8, 2005, resulting in a sentence of nine months in jail. Approximately two months later,defendant was indicted by a federal grand jury for assaulting a federal agent, and the UnitedStates Attorney's Office notified the Erie County District Attorney's Office (Erie County DA) onMay 3, 2006 that defendant had pleaded guilty and was awaiting sentencing. Defendant beganserving his federal sentence of four years in August 2006, and in October 2006 the Erie CountyDA received a letter from defendant requesting that he be delivered to Erie County to resolve theinstant charge. In December 2006 the Erie County DA filed a writ of habeas corpus with federalauthorities seeking to have defendant transferred to Erie County for trial. Defendant thereafterwas brought to New York on January 4, 2007 and was arraigned the following day.
We reject the contention of defendant that the period from July 11, 2005, when he wasarrested in Ohio, until January 5, 2007, when he was arraigned in Erie County, is chargeable tothe People under CPL 30.30. The People have no obligation to exercise due diligence to locate adefendant "who flees after the People have announced their readiness for trial"(People v Coplin, 236 AD2d 552, 554 [1997], lv denied 90 NY2d 856 [1997]).Nevertheless, pursuant to CPL 30.30 (4) (e), the period of postreadiness delay during which adefendant is detained in another jurisdiction with [*2]the People'sknowledge is chargeable to the People unless they have been diligent and have made "reasonableefforts to obtain the presence of the defendant for trial" (see People v Anderson, 66NY2d 529, 539-540 [1985]). That obligation is predicated upon the theory that the People's"ability to proceed to trial is said to be actually implicated . . . [i.e., because] thePeople have it within their means to petition another State for the defendant's return to ourjurisdiction, the burden is placed upon them to act diligently in facilitating the defendant'sreturn" (People v Myers, 184 Misc 2d 394, 396 [2000]; see People v McKenna,76 NY2d 59, 63-64 [1990]).
Here, defendant contends that the People failed to exercise the requisite diligence inobtaining his presence once they learned that he was incarcerated in Ohio based on the fact thatthey did not seek a writ of habeas corpus until the federal prosecution was completed. Wedisagree. The People were not obligated to take measures to secure defendant's presence in NewYork when they knew that, until defendant was prosecuted and sentenced in federal court, suchmeasures would be futile (see People v Gonzalez, 235 AD2d 366 [1997], lv denied89 NY2d 1093 [1997]; see generally CPL 580.20; People v Vrlaku, 73NY2d 800 [1988]).
Defendant failed to preserve for our review his further contention that the conviction is notsupported by legally sufficient evidence (see People v Gray, 86 NY2d 10, 19 [1995]). Inany event, that contention is without merit inasmuch as there is a valid line of reasoning andpermissible inferences that could lead a rational person to conclude that defendant committed therobbery in question (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Alsocontrary to defendant's contention, viewing the evidence in light of the elements of the crime ofrobbery as charged to the jury (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).
The sentence is not unduly harsh or severe. We have reviewed defendant's remainingcontentions and conclude that they are without merit. Present—Centra, J.P., Peradotto,Carni, Lindley and Pine, JJ.