| People v Afrika |
| 2010 NY Slip Op 09681 [79 AD3d 1678] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Nache Afrika,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered May 2,2008. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree, rapein the first degree and sodomy in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, rape in the first degree (Penal Law § 130.35 [1]). We previously reversed thejudgment convicting defendant of the same offenses and granted defendant a new trial (People v Afrika, 9 AD3d 876[2004], amended on rearg 11 AD3d 1046 [2004]), and the judgment now on appeal is theresult of the retrial. Defendant contends that he was denied his right to a speedy trial pursuant toCPL 30.30 based on prereadiness and postreadiness delay following our remittal. We reject thatcontention. Based on our review of the record, we conclude that most of the prereadiness delaywas excludeable (see CPL 30.30 [4] [a], [b], [f]). Contrary to the defendant's contentions,the People's announcement of readiness for trial was not illusory (see generally People vKendzia, 64 NY2d 331, 337 [1985]), and any postreadiness delay did not impact the People'sability to proceed to trial (see People v Carter, 91 NY2d 795, 799 [1998]). The furthercontentions of defendant concerning delays occurring after County Court denied his speedy trialmotion are not preserved for our review (see People v Goode, 87 NY2d 1045, 1047[1996]), and we decline to exercise our power to review those contentions as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
Contrary to defendant's contention, the evidence is legally sufficient to support the conviction(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495).
Following remittal, defendant moved to dismiss the original indictment on the ground thatthe evidence presented to the grand jury, excluding the DNA evidence suppressed by ourdecision in the [*2]prior appeal (Afrika, 9 AD3d at 876),was legally insufficient to support a conviction. It is well established that "[t]he validity of anorder denying any motion [to dismiss an indictment for legal insufficiency of the grand juryevidence] is not reviewable upon an appeal from an ensuing judgment of conviction based uponlegally sufficient trial evidence" (CPL 210.30 [6]). Nevertheless, defendant contends that, despitehis characterization of the motion to dismiss as one based on the legal sufficiency of the grandjury evidence, the motion was actually a motion to dismiss based on a legal impediment to theconviction pursuant to CPL 210.20 (1) (h) and that the court erred in denying that motion. Evenassuming, arguendo, that defendant's contention is preserved for our review and is properlybefore us, we conclude that it lacks merit. There is "a distinction between evidence subject to aper se exclusionary rule that is never sufficient to support an indictment and evidence that issufficient to support a prima facie case before the [g]rand [j]ury but is later proven unreliable"(People v Gordon, 88 NY2d 92, 96 [1996]; see People v Swamp, 84 NY2d 725,731-732 [1995]). The fact that the DNA evidence was later determined to be inadmissible doesnot create a legal impediment to defendant's conviction (cf. Swamp, 84 NY2d at 732).
Defendant further contends that the court lacked jurisdiction to try him on the originalindictment because, once he was arraigned on the superseding indictment, the original indictmentwas automatically dismissed and could not be reinstated. We reject that contention. Because thePeople improperly filed a superseding indictment (see CPL 40.30 [3]), that indictmentmust be deemed a nullity and "any action or consequence that flowed from its filing—here,the dismissal of the original indictment—was necessarily a nullity as well. In the absenceof any constitutional or statutory double jeopardy bar, the . . . court possessedinherent authority to reinstate the original indictment after dismissing the supersedingindictment" (People v Frederick, 14NY3d 913, 916-917 [2010]; seealso People v Clarke, 55 AD3d 1447, 1448 [2008], lv denied 11 NY3d 923[2009]).
As in the prior appeal, defendant challenges the People's use of DNA evidence obtained froma sample taken from defendant before trial. Here, however, we conclude that there was no basisto suppress that DNA evidence obtained prior to the retrial. The People's application for a buccalswab was supported by probable cause (see Matter of Abe A., 56 NY2d 288, 291 [1982])and, contrary to defendant's contention, that application did not rely on previously suppressedevidence. Contrary to defendant's further contention, there was no Crawford violationbecause Crawford applies only to testimonial evidence that is presented at trial (see People v Leon, 10 NY3d 122,125 [2008], cert denied 554 US 926 [2008]; see generally Melendez-Diaz vMassachusetts, 557 US —, 129 S Ct 2527 [2009]; Crawford v Washington,541 US 36 [2004]).
Defendant was not entitled to a hearing to challenge his predicate felon status (see Peoplev Wallace, 298 AD2d 130 [2002], lv denied 99 NY2d 565 [2002]), and he wasproperly sentenced to consecutive sentences (see Penal Law § 70.25 [2]; Peoplev Laureano, 87 NY2d 640, 643 [1996]; People v Bailey, 17 AD3d 1022 [2005], lv denied 5 NY3d803 [2005]). The sentence is not unduly harsh or severe. We note, however, that the certificate ofconviction incorrectly reflects that defendant was sentenced as a second felony offender, and itmust therefore be amended to reflect that he was sentenced as a second violent felony offender(see People v Martinez, 37 AD3d1099, 1100 [2007], lv denied 8 NY3d 947 [2007]).
We have reviewed defendant's remaining contentions and conclude that they are withoutmerit. Present—Smith, J.P., Centra, Fahey, Peradotto and Pine, JJ.