| People v Small |
| 2013 NY Slip Op 08466 [112 AD3d 857] |
| December 18, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Samuel Small, Also Known as Samuel Smalls,Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and AnnBordley of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Sullivan, J.), rendered October 14, 2010, convicting him of burglary in the seconddegree (two counts), upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial (Parker, J.; DiMango, J.; Foley, J.) of the defendant's three motionsto dismiss the indictment.
Ordered that the judgment is affirmed.
While the defendant was in police custody after being arraigned on a felonycomplaint for a burglary that occurred on April 4, 2006, the People filed a felonycomplaint charging him with offenses relating to a burglary that occurred on February23, 2006. The defendant was never arraigned on the felony complaint related to theFebruary 23, 2006, burglary. On May 9, 2006, a grand jury returned an indictmentcharging the defendant with committing both burglaries.
Contrary to the defendant's contention, since he was not arrested pursuant to thearrest warrant that was issued in connection with the felony complaint related to theFebruary 23, 2006, burglary, the police did not violate CPL 120.90 by failing to bring thedefendant before a local criminal court without unnecessary delay (see CPL120.90 [1]). Further, since the defendant was never arraigned upon the felony complaintrelated to the February 23, 2006, burglary, the People were not obligated to provide thedefendant with notice that offenses arising from the February 23, 2006, burglary wouldbe presented to the grand jury along with the offenses arising from the April 4, 2006burglary (see CPL 190.50 [5] [a]; People v Perez-Tavares, 238 AD2d446, 447 [1997]; People v Choi, 210 AD2d 495, 496 [1994]). In any event, thePeople ultimately apprised the defendant of the expanded scope of the grand jury'sinquiry, and afforded him an adequate and reasonable opportunity to exercise his right totestify (see People v Choi, 210 AD2d at 496-497).
The defendant contends that he was improperly sentenced as a second violent felonyoffender because the sentence on his predicate violent felony conviction was imposedmore than 10 years before the commission of the instant offense (see Penal Law§ 70.04 [1] [b] [iv]), and the 10-year [*2]periodwas not sufficiently tolled by periods of incarceration (see Penal Law §70.04 [1] [b] [v]). Contrary to the defendant's contention, his imprisonment from August7, 1992, to October 21, 1993, was not without reason or unconstitutional, and this periodwas thus properly excluded in calculating the 10-year period (see id.; cf.People v Dozier, 78 NY2d 242, 249 [1991]; People v Love, 71 NY2d 711,716 [1988]). Accordingly, the defendant was properly adjudicated a second violentfelony offender. Balkin, J.P., Lott, Austin and Miller, JJ., concur.