| People v McFaline |
| 2018 NY Slip Op 08442 [167 AD3d 465] |
| December 11, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Andrew McFaline, Appellant. |
Law Office of Barry A. Weinstein, P.C., Bronx (Barry A. Weinstein of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), forrespondent.
Judgment, Supreme Court, New York County (Abraham Clott, J.), rendered June 29, 2017,convicting defendant, after a jury trial, of criminal sale of a controlled substance in the thirddegree, and sentencing him to a term of 1
The court properly denied defendant's CPL 30.30 speedy trial motion. The motion turned oncertain adjournments attributable to the unavailability of a retired detective, for reasons relatingto his relocation to Florida, his own medical condition, and his need to visit his seriously illfather in Puerto Rico. These adjournments were correctly excluded as "occasioned by exceptionalcircumstances" (CPL 30.30 [4] [g]; People v Goodman, 41 NY2d 888, 889 [1977]). Wehave considered defendant's other arguments concerning the court's determination of the CPL30.30 motion, including defendant's challenges to the sufficiency of the People's showing insupport of their claims, and find them unavailing (see People v Alcequier, 15 AD3d 162, 163 [1st Dept 2005], lvdenied 4 NY3d 851 [2005]).
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348 [2007]). There is no basis for disturbing the jury's credibility determinations.The police witness's testimony about interactions between the person who sold drugs to theundercover officer, and defendant, who delivered the drugs to the seller, supports an inferencethat "defendant intentionally and directly assisted in . . . the illegal sale of a narcoticdrug" (People v Bello, 92 NY2d 523, 526 [1998]).
The court properly denied, without granting a hearing, defendant's motion to suppressphysical evidence. Defendant's conclusory denial of selling cocaine to an undercover officer didnot contradict the felony complaint's allegation that defendant supplied drugs to another person,who sold them to an undercover officer, and this denial was insufficient, in the context of theinformation available to defendant, to require a hearing (see People v Jones, 95 NY2d721 [2001]).
The court providently exercised its discretion in limiting the cross-examination of a policewitness about past lawsuits against him alleging misconduct (see People v Smith, 27 NY3d 652 [2016]). Defendant receivedample scope in which to impeach the officer's credibility, and the lines of inquiry that the courtrestricted would have delved into collateral issues and matters that would have required the juryto understand aspects of civil practice. In any event, we find that any error was harmless (seePeople v Crimmins, 36 NY2d 230 [1975]).
The prosecutor's summation argument that defendant characterizes as unfairly denigratingdefense counsel "did not exceed the broad bounds of rhetorical comment permissible in closingargument" (see People v Galloway, 54 NY2d 396, 399 [1981]). Defendant's remainingchallenges to the prosecutor's summation are unpreserved, since defense counsel either failed toraise a timely objection or did not object on the same grounds raised on appeal (see People v Romero, 7 NY3d 911[2006]). Defendant's postsummation mistrial motion was ineffective to preserve these arguments(see id.). As an alternative holding, we find no basis for [*2]reversal (see People v Overlee, 236 AD2d 133 [1st Dept1997], lv denied 91 NY2d 976 [1998]; People v D'Alessandro, 184 AD2d 114[1st Dept 1992], lv denied 81 NY2d 884 [1993]). In any event, any error involving theprosecutor's summation was harmless.
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Renwick,Mazzarelli, Oing, Moulton, JJ.