| People v Stokes |
| 2016 NY Slip Op 05672 [141 AD3d 1032] |
| July 28, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJames Stokes, Also Known as Is, Appellant. |
Arthur G. Dunn, Troy, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered June 18, 2014, upon a verdict convicting defendant of the crimes ofcriminal possession of a weapon in the second degree, criminal possession of a weaponin the third degree and criminal sale of a firearm in the third degree.
Following the shooting of two victims on April 15, 2013, the suspected shooter wasapprehended and found to be in possession of ammunition, but not a firearm. Shortlythereafter, an informant purchased from defendant the defaced firearm that had been usedduring the shooting. As a result, in June 2013, defendant was charged by indictment withcriminal possession of a weapon in the second degree, criminal possession of a weaponin the third degree (two counts) and criminal sale of a firearm in the third degree.Defendant was arrested later that month and a jury trial commenced in May 2014. At theconclusion of the trial, defendant was acquitted of one count of criminal possession of aweapon in the third degree and otherwise convicted as charged. He was subsequentlysentenced, as a second felony offender, to an aggregate prison term of 14 years to befollowed by five years of postrelease supervision. Defendant now appeals.
Defendant first contends that he was denied his constitutional right to a speedy trialby virtue of the 13-month delay between the commission of the crime and the time oftrial. In reviewing this claim, "the factors to be considered are the length of and reasonfor the delay, the nature of the charges, whether there was extended pretrial incarcerationand whether the defense [*2]was prejudiced" (People v Pope, 96 AD3d1231, 1233 [2012], lv denied 20 NY3d 1064 [2013]; see People v Romeo, 12 NY3d51, 55 [2009], cert denied 558 US 817 [2009]; People v Taranovich,37 NY2d 442, 445 [1975]; People v Chaplin, 134 AD3d 1148, 1149 [2015], lvdenied 27 NY3d 1067 [2016]). Defendant was indicted approximately two monthsafter the commission of the crime and arrested two weeks later in another state. Althoughdefendant's 10
Nor can we agree with defendant's contention that County Court abused its discretionin denying his request for a missing witness charge as to the shooter. Initially, thePeople's contention that defendant's request was untimely is unpreserved for our review(see People v Erts, 73 NY2d 872, 874 [1988]; People v Sullivan, 12 AD3d1046, 1048 [2004], lv denied 4 NY3d 803 [2005]). As for the merits, wefind that defendant failed to meet his burden of establishing a precondition for thecharge—namely, that the missing witness "would have given noncumulativetestimony favorable to the People" (People v Baldwin, 35 AD3d 1088, 1091-1092 [2006];see People v Savinon, 100 NY2d 192, 197 [2003]; People v Turner, 73 AD3d1282, 1284 [2010], lv denied 15 NY3d 896 [2010]).
Defendant also challenges County Court's response to a jury note seeking guidanceon whether the precise time that the criminal sale occurred was important. It is wellsettled that "while a trial court is without discretion in deciding whether to respond [to ajury note], the court does have discretion as to the substance of the response" (People v Santi, 3 NY3d234, 248 [2004]; see Peoplev Haardt, 129 AD3d 1322, 1324-1325 [2015]; People v Briskin, 125 AD3d1113, 1121 [2015], lv denied 25 NY3d 1069 [2015]). County Courtconferred with the parties and then reread the elements of the criminal sale charge to thejury. Upon our review of the record, we are satisfied that this response was well withinits discretion and was a meaningful response to the jury's inquiry (see CPL310.30; People v Acevedo,118 AD3d 1103, 1107-1108 [2014], lv denied 26 NY3d 925 [2015]; People v Buckery, 20 AD3d821, 823 [2005], lv denied 5 NY3d 826 [2005]).
We also reject defendant's contention that County Court erred in calculating theduration of the order of protection issued in favor of the informant, as the record reflectsthat the duration takes into account defendant's jail time credit and properly includes theperiod of postrelease supervision (see CPL 530.13 [4] [A] [ii]; People v Crowley, 34 AD3d866, 868 [2006], lv denied 7 NY3d 924 [2006]; cf. People v Lancaster, 121AD3d 1301, 1305 [2014], lv denied 24 NY3d 1121 [2015]). Defendant'srelated contention that the order of protection is invalid because County Court failed tostate the reasons for issuing it is unpreserved for our review (see People v O'Connor, 136AD3d 945, 945 [2016], lv denied 27 NY3d 1073 [2016]; People v Bryant, 132 AD3d502, 502 [2015], lv denied 26 NY3d 1086 [2015]) and, in any event, iswithout merit (see People vHarden, 26 AD3d 887, 888 [2006], lv denied 6 NY3d 834 [2006]).Finally, in light of defendant's extensive criminal history, which dates back to 1983 andincludes numerous felonies, we discern no basis from the record to reduce the sentenceimposed (see People vMartin, 136 AD3d 1218, 1220 [2016]; People v Nelson, 128 AD3d 1225, 1228[*3][2015], lv denied 26 NY3d 1041 [2015]).
Defendant's remaining contentions have been considered and determined to belacking in merit.
Peters, P.J., Garry, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.