People v. Afrika

• Decision Date: 30 December 2010
• Citation: 79 A.D.3d 1678,914 N.Y.S.2d 542
• Parties: The PEOPLE of the State of New York, Respondent, v. Nache AFRIKA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 542
79 A.D.3d 1678

The PEOPLE of the State of New York, Respondent,
v.
Nache AFRIKA, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 2010.

914 N.Y.S.2d 542

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant-Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

PRESENT: SMITH, J.P., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ.

MEMORANDUM:

79 A.D.3d 1678

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree (Penal Law § 130.35[1] ). We previously reversed the judgment convicting defendant of the same offenses and granted defendant a new trial

914 N.Y.S.2d 543

( People v. Afrika, 9 A.D.3d 876, 779 N.Y.S.2d 692, amended on rearg. 11 A.D.3d 1046, 782 N.Y.S.2d 390), and the judgment now on appeal is the result of the retrial. Defendant contends that he was denied his right to a speedy trial pursuant to CPL 30.30 based on prereadiness and postreadiness delay following our remittal. We reject that contention. Based on our review of the record, we conclude that most of the prereadiness delay was excludable ( see CPL 30.30[4][a], [b], [f] ). Contrary to the defendant's contentions, the People's announcement of readiness for trial was not illusory ( see generally People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287), and any postreadiness delay did not impact the People's ability to proceed to trial ( see People v. Carter, 91 N.Y.2d 795, 799, 676 N.Y.S.2d 523, 699 N.E.2d 35). The further contentions of defendant concerning delays occurring after County Court denied his speedy trial motion are not preserved for our review ( see People v. Goode, 87 N.Y.2d 1045, 1047, 643 N.Y.S.2d 477, 666 N.E.2d 182), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ).

Contrary to defendant's contention, the evidence is legally sufficient to support the conviction ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

79 A.D.3d 1679

Following remittal, defendant moved to dismiss the original indictment on the ground that the evidence presented to the grand jury, excluding the DNA evidence suppressed by our decision in the prior appeal ( Afrika, 9 A.D.3d at 876, 779 N.Y.S.2d 692), was legally insufficient to support a conviction. It is well established that "[t]he validity of an order denying any motion [to dismiss an indictment for legal insufficiency of the grand jury evidence] is not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence" (CPL 210.30 [6] ). Nevertheless, defendant contends that, despite his characterization of the motion to dismiss as one based on the legal sufficiency of the grand jury evidence, the motion was actually a motion to dismiss based on a legal impediment to the conviction pursuant to CPL 210.20(1)(h) and that the court erred in denying that motion. Even assuming, arguendo, that defendant's contention is preserved for our review and is properly before us, we conclude that it lacks merit. There is "a distinction between evidence subject to a per se exclusionary rule that is never sufficient to support an indictment and evidence that is sufficient to...