| People v Henderson |
| 2014 NY Slip Op 06104 [120 AD3d 1258] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Steven Henderson, Appellant. |
Lynn W. L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.
Kenneth P. Thompson, 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(Gary, J.), rendered February 17, 2011, convicting him of rape in the first degree andcriminal sexual act in the first degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that judgment is affirmed.
In felony cases, the People are required to be ready for trial within six months afterthe commencement of the criminal action (see CPL 30.30 [1] [a]; People v Headley, 100 AD3d775, 775-776 [2012]). "A defendant seeking dismissal of the indictment on speedytrial grounds under CPL 30.30 meets his or her initial burden on the motion simply byalleging that the People failed to declare readiness within the statutorily prescribedperiod" (People v Allard,113 AD3d 624, 625 [2014]; see People v Beasley, 16 NY3d 289, 292 [2011]; Peoplev Goode, 87 NY2d 1045, 1047 [1996]). " '[O]nce the defendant has shownthe existence of a delay greater than six months, the burden of proving that certainperiods within that time should be excluded falls upon the People' " (People vHeadley, 100 AD3d at 776, quoting People v Berkowitz, 50 NY2d 333, 349[1980]; see People v Santos, 68 NY2d 859, 861 [1986]; People v Allard,113 AD3d at 625; People vWearen, 98 AD3d 535, 537 [2012]).
After the People "identify the exclusions on which they intend to rely. . . the defense must identify any legal or factual impediments to the use ofthese exclusions" in order to preserve challenges to the People's reliance on thoseexclusions for appellate review (People v Luperon, 85 NY2d 71, 78 [1995];see People v Beasley, 16 NY3d at 292; People v Goode, 87 NY2d at1047). The fact that the People may have failed to set forth any proof to substantiate theirclaimed exclusions does not serve to obviate the defendant's obligation to preserve hisobjection to the People's failure to sustain their substantive burden of proof on this issueor to any other deficiency in the People's response to the defendant's motion (seePeople v Beasley, 16 NY3d at 292; People v Luperon, 85 NY2d at 78;People v Goode, 87 NY2d at 1047).
Here, after the People set forth the statutory exclusions they intended to rely upon inopposition to the defendant's motion, the defendant failed to raise before the SupremeCourt the legal or factual impediments to the exclusions that he seeks to raise on appeal.Accordingly, the defendant failed to preserve for appellate review his contention that theSupreme Court erred in [*2]denying his motion pursuantto CPL 30.30 to dismiss the indictment on the ground that he was denied the statutoryright to a speedy trial (see People v Beasley, 16 NY3d at 292; People vLuperon, 85 NY2d at 78; People v Goode, 87 NY2d at 1047), and, under thecircumstances of this case, we decline to reach the issue in the exercise of our interest ofjustice jurisdiction (see CPL 470.05 [2]).
The defendant's challenge to the legal sufficiency of the evidence with respect to hisconvictions of rape in the first degree (Penal Law § 130.35 [1]), andcriminal sexual act in the first degree (Penal Law § 130.50 [1]) areunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492-493 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People vGray, 86 NY2d 10, 19-21 [1995]), and we decline to review them in the exercise ofour interest of justice jurisdiction (see e.g. People v Bridges, 63 AD3d 752 [2009]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt with respect to the convictions of rape in the first degree(see Penal Law § 130.35 [1]), and criminal sexual act in the firstdegree (see Penal Law § 130.50 [1]), were not against the weight ofthe evidence (see People vRomero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, he failed to establish that he was deprived ofhis constitutional right to effective assistance of counsel (see People v Ryan, 90NY2d 822, 824 [1997]; People v Rivera, 71 NY2d 705, 708-709 [1988]).Mastro, J.P., Dillon, Miller and Maltese, JJ., concur.