| People v Hernandez |
| 2012 NY Slip Op 01277 [92 AD3d 802] |
| February 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v NumaHernandez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Edward D. Saslawof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann,J.), rendered December 11, 2009, convicting him of attempted murder in the second degree andcriminal possession of a weapon in the second degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial of the defendant's motion pursuant to CPL30.30 to dismiss the indictment on the ground that he was deprived of his statutory right to aspeedy trial.
Ordered that the judgment is affirmed.
When a defendant is accused of a felony, the indictment must be dismissed unless the Peopleare ready for trial within six months of the commencement of the criminal action (seeCPL 30.30 [1] [a]; People v Sinanaj, 291 AD2d 513 [2002]). With respect to periods ofdelay that occur following the People's statement of readiness, any period of an adjournment inexcess of that actually requested by the People is excluded (see People v Carter, 91 NY2d795, 799 [1998]; People v Cortes, 80 NY2d 201, 210 [1992]; People v Williams, 32 AD3d 403,404-405 [2006]; People v Nielsen, 306 AD2d 500, 501 [2003]; People vDushain, 247 AD2d 234, 236 [1998]). The total time chargeable to the People was less thanthe six-month time period provided by CPL 30.30 (1) (a). Accordingly, the Supreme Courtproperly denied the defendant's motion to dismiss the indictment pursuant to CPL 30.30.
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise itsdiscretion in disqualifying a sworn juror as grossly unqualified to serve on the jury, as he couldnot unequivocally state that he could reach a fair and impartial decision (see CPL 270.35;People v Lennon, 37 AD3d 853[2007]; People v Defina, 256 AD2d 586 [1998]; People v White, 204 AD2d 750[1994]; People v Galvin, 112 AD2d 1090 [1985]).
The Supreme Court properly admitted the tape of a telephone call to the 911 emergencynumber under the present sense impression exception to the hearsay rule. The time delay betweenthe occurrence of the events and the call was not sufficient to destroy the indicia of reliabilityupon which this hearsay exception rests (see People v Vasquez, 88 NY2d 561 [1996];People v [*2]York, 304 AD2d 681 [2003]; People vSmith, 267 AD2d 407, 408 [1999]).
The defendant's contention that he was deprived of a fair trial by certain remarks made by theprosecutor during summation is unpreserved for appellate review, as he did not object to theremarks at issue (see CPL 470.05 [2]; People v Wright, 90 AD3d 679 [2011]). In any event, thechallenged remarks were fair comment on the evidence, permissible rhetorical comment, orresponsive to defense counsel's summation, or do not warrant reversal (see People vGalloway, 54 NY2d 396, 401 [1981]; People v Ashwal, 39 NY2d 105, 109-110[1976]; People v Valerio, 70 AD3d869 [2010]).
"The right to effective assistance of counsel is guaranteed by the Federal and StateConstitutions" (People v Rivera, 71 NY2d 705, 708 [1988]; see US Const SixthAmend; NY Const, art I, § 6; People v Collado, 90 AD3d 672, 672 [2011]). Here, the defendantwas not deprived of the effective assistance of counsel under the New York Constitution since,viewing defense counsel's performance in totality, counsel provided meaningful representation(see People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d137, 147 [1981]; People v Collado, 90 AD3d at 673; People v Vaughan, 48 AD3d 1069, 1070 [2008], certdenied 555 US 910 [2008]). Further, the defendant was not deprived of the effectiveassistance of counsel under the Federal Constitution (see Strickland v Washington, 466US 668, 688 [1984]). Dillon, J.P., Florio, Chambers and Roman, JJ., concur.