| People v Joaquin |
| 2017 NY Slip Op 04224 [150 AD3d 618] |
| May 30, 2017 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Miguel Joaquin, Appellant. |
Law Office of Paul P. Martin, New York (Paul P. Martin of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Ethan Greenberg, J. at speedy trial motion andjury trial; Steven L. Barrett, J. at sentencing), rendered August 24, 2011, as amended December20, 2011, convicting defendant of kidnapping in the second degree and robbery in the first andsecond degrees, and sentencing him to an aggregate term of 20 years, unanimously affirmed.
Defendant's legal sufficiency claims as to the robbery convictions are unpreserved, and wedecline to review them in the interest of justice. As an alternative holding, we reject them on themerits. We also find that the remaining conviction was likewise based on legally sufficientevidence, and that the verdict, as to all charges, was not against the weight of the evidence (see People v Danielson, 9 NY3d342, 348 [2007]). There is no basis for disturbing the jury's credibility determinations. Therewas extensive evidence to support the inference of accessorial liability as to each of thecharges.
The court properly declined to strike any of the victim's testimony as a remedy for hisrepeated invocation of his Fifth Amendment privilege against self-incrimination duringcross-examination, and it provided a suitable remedy by repeatedly instructing the jury that whilethe victim had the right to do so, the jury may consider his assertion of the privilege indetermining the credibility and weight of his testimony (see People v Siegel, 87 NY2d536, 544-545 [1995]). There was no impairment of defendant's right to confront this witness(see Delaware v Van Arsdall, 475 US 673, 678-679 [1986]).
The court's charge did not improperly shift the burden of proof when it reminded the jury thatthe victim had withdrawn his assertion of the privilege as to a cross-examination question aboutbribery, after which defense counsel declined to question him on that matter. The court properlyinstructed the jury to disregard that portion of the testimony, and reminded the jury thatdefendant did not have any burden of proof. In any event, any error involving the witness'sassertion of his privilege or the court's charge was harmless (see People v Crimmins, 36NY2d 230 [1975]).
The court correctly denied defendant's CPL 30.30 speedy trial motion on three alternativegrounds. Pursuant to the fugitive disentitlement doctrine, defendant forfeited his right to makethis motion by absconding after the motion was filed, but before the court issued its decision(see People v Panico, 130 AD2d 777, 778 [2d Dept 1987]; see also People v Taveras, 10 NY3d227, 232 [2008]). The motion was also untimely. Counsel first filed the CPL 30.30 motionafter both counsel had answered ready for trial, the case had been sent to and was pending in atrial part, the trial court had addressed several preliminary issues, and the trial court hadannounced it was ready to begin jury selection. Under these circumstances, "defense counsel'stactics deprived the prosecution of reasonable notice of the motion, and . . .defendant waived his speedy trial claim by announcing his readiness for trial and by failing torequest an adjournment when the People moved the case to trial" (People v Harvall, 196AD2d 553, 554-555 [2d Dept 1993], lv denied 82 NY2d 896 [1993]; see also People v Dolan, 54 Misc 3d144[A], 2017 NY Slip Op 50239[U] [App Term, 1st Dept 2017]). Furthermore, the motionwas without merit (see People v Martinez, [*2]268 AD2d354 [1st Dept 2000], lv denied 94 NY2d 922 [2000]).
Defendant's claim that his counsel was unconstitutionally ineffective in failing to file a timelyspeedy trial motion is unreviewable in the absence of a CPL 440.10 motion, since it involvesmatters not fully explained by the record (see People v Rivera, 71 NY2d 705, 709[1988]). Insofar as this claim is reviewable, counsel was not ineffective in failing to file a timelymotion, because, as the court correctly determined, the motion was without merit in any event.Concur—Acosta, P.J., Friedman, Andrias, Webber and Gesmer, JJ.