| People v Williams |
| 2016 NY Slip Op 02234 [137 AD3d 1709] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLorenzo D. Williams, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Trevett Cristo Salzer &Andolina P.C. (Eric M. Dolan of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.),rendered September 30, 2011. The judgment convicted defendant, upon a jury verdict, ofoffering a false instrument for filing in the first degree, offering a false instrument forfiling in the second degree, and practicing or appearing as attorney-at-law without beingadmitted and registered.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, that part of the omnibus motion seeking to dismiss the indictment pursuant toCPL 30.30 is granted, and the indictment is dismissed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of offering a false instrument for filing in the first degree (Penal Law§ 175.35), offering a false instrument for filing in the second degree (PenalLaw § 175.30), and two counts of practicing or appearing as anattorney-at-law without being admitted and registered (Judiciary Law§ 478). The convictions arose from defendant filing two notices of retainerand appearance with the New York State Workers' Compensation Board.
We agree with defendant that County Court erred in denying that part of his omnibusmotion seeking to dismiss the indictment pursuant to CPL 30.30. Initially, we note thatthe People failed to preserve for our review their present contention that they dischargedtheir duty under CPL 30.30 on March 7, 2006 inasmuch as they failed to raise it in thecourt below (see People v Garcia, 296 AD2d 509, 510 [2002]; see generally People v Pallagi,91 AD3d 1266, 1267 [2012]) and, thus, this Court has no power to review thatcontention (see CPL 470.15 [1]; People v Concepcion, 17 NY3d 192, 195 [2011];People v LaFontaine, 92 NY2d 470, 474 [1998], rearg denied 93 NY2d849 [1999]).
In opposition to defendant's CPL 30.30 application, the People contended that theperiod from May 1, 2006 to March 9, 2011 in which defendant was absent from thejurisdiction was not chargeable to them. "A defendant must be considered absentwhenever his location is unknown and he is attempting to avoid apprehension orprosecution, or his location cannot be determined by due diligence" (CPL 30.30 [4] [c][i]). "The police are not required to search for a defendant indefinitely, but they mustexhaust all reasonable investigative leads as to his or her whereabouts" (People v Devore, 65 AD3d695, 697 [2009]; see Peoplev Petrianni, 24 AD3d 1224, 1224-1225 [2005]). Here, the People "failed toprove either that the defendant was attempting to avoid apprehension or that his locationcould not be determined by due diligence, a necessary predicate for an exclusion basedupon the defendant's absence" (Devore, 65 AD3d at 696). As a result, the periodfrom May 1, 2006 to March 9, 2011 should not have been excluded from the speedy trialcalculation. We therefore grant that part of defendant's omnibus motion seeking todismiss the indictment pursuant to CPL 30.30. Present—Whalen, P.J., Smith,Carni, Nemoyer and Curran, JJ.