| People v Scarborough |
| 2014 NY Slip Op 07936 [122 AD3d 473] |
| November 18, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey Scarborough, Appellant. |
Richard M. Greenberg, Office of the Appellate Defender, New York (RosemaryHerbert of counsel), and Weil, Gotshal & Manges LLP, New York (Jennifer D.Larson of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), forrespondent.
Judgment, Supreme Court, New York County (Laura Ward, J., at speedy trialmotions; Thomas Farber, J., at hearing; Ruth Pickholz, J., at jury trial and sentencing),rendered January 19, 2011, convicting defendant of criminal sale of a controlledsubstance in the second degree, and sentencing him, as a second felony drug offender, toa term of six years, unanimously affirmed.
The court properly denied defendant's speedy trial motions. Initially, we note thatdefendant did not preserve any challenges to the court's findings relating to the timeperiods covered by his first motion, or his claim that, with regard to adjournmentscovered by the second motion, the court should have charged the People with more timethan defendant requested in his moving papers. We decline to review these unpreservedclaims in the interest of justice. Defendant's main preserved claim is his assertion that thePeople's declaration of readiness was illusory. However, there is no evidence that thePeople's statement, which was made in open court and not by way of an off-calendarcertificate, failed to accurately reflect their position. The People's unreadiness atsubsequent calendar calls was satisfactorily explained, and nothing in People v Sibblies (22 NY3d1174 [2014]) supports a contrary conclusion. In view of our conclusion that allperiods of delay following the declaration at issue should be treated as postreadinessdelay, we find defendant's speedy trial arguments to be unavailing.
The People established by clear and convincing evidence that there was anindependent source for an in-court identification by an undercover officer,notwithstanding identifications that the court suppressed. The trained undercover officercarefully observed defendant for the purpose of making an identification, and had anample opportunity to observe defendant during the commission of the crime (see e.g.People v Williams, 222 AD2d 149 [1st Dept 1996], lv denied 88 NY2d 1072[1996]).
The verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). As noted, the identification testimony of theundercover officer was reliable. Moreover, it was corroborated by persuasivecircumstantial evidence linking defendant to the drug sale. Defendant's challenge to theweight of the evidence rests largely on matters that [*2]were not introduced at trial (see People v Dukes,284 AD2d 236 [1st Dept 2001], lv denied 97 NY2d 681 [2001]), and on achallenge to the court's identification charge that is both unpreserved and meritless.Concur—Tom, J.P., Renwick, Andrias, DeGrasse and Kapnick, JJ.