| People v Crespo |
| 2014 NY Slip Op 03375 [117 AD3d 1538] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMiguel Crespo, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedOctober 3, 2011. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a controlled substance in the fourth degree (Penal Law§ 220.09 [1]). We reject defendant's contention that County Court erred indenying his motion to dismiss the indictment pursuant to CPL 30.30 (1) (a). Defendantwas arrested on December 13, 2008, and the People announced their readiness for trialon May 28, 2009, i.e., within the requisite six-month period (see People v Goss,87 NY2d 792, 797 [1996]; see also CPL 30.30 [1] [a]). The period ofpostreadiness delay between October 1, 2009 and November 24, 2009 is not chargeableto the People because it was the result of the unavailability of the court due to courtcongestion (see People vTirado, 109 AD3d 688, 690 [2013], lv denied 22 NY3d 959 [2013],reconsideration denied 22 NY3d 1091 [2014]). Defendant's contention withrespect to the prereadiness period of delay between May 21, 2009 and May 28, 2009 israised for the first time on appeal and is thus not preserved for our review (seeCPL 470.05 [2]; see also People v Luperon, 85 NY2d 71, 77-78 [1995]). Inany event, defendant requested an adjournment from May 27, 2009 to May 28, 2009 andthe period of time between the indictment and arraignment at issue here is chargeable tothe court—not the People—as a matter of law (see Goss, 87 NY2dat 798).
We reject the further contention of defendant that the court should have reopened thesuppression hearing, as well as his alternative contention that defense counsel wasineffective for failing to move to do so. Defendant did not ask to reopen the suppressionhearing, and the court was under no obligation to reopen the hearing sua sponte (seePeople v Lewis, 302 AD2d 322, 323 [2003], lv denied 100 NY2d 540[2003]). In any event, defendant's contention is based upon evidence that was availableand could have been discovered with reasonable diligence prior to the hearing(see CPL 710.40 [4]; People v Wynn, 55 AD3d 1378, 1379 [2008], lvdenied 11 NY3d 901 [2008]), or evidence that would not have changed the outcomeof the hearing (see People vLucie, 49 AD3d 1253, 1254 [2008], lv denied 10 NY3d 936 [2008]).Inasmuch as a motion to reopen the suppression hearing would not have been successful,defendant was not denied effective assistance of counsel when his first attorney did notmake such a motion (see Peoplev Nuffer, 70 AD3d 1299, 1300 [2010]). Viewing the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Finally, the sentence is not undulyharsh or severe. Present—Scudder, P.J., Peradotto, Carni, Lindley and Valentino,JJ.