People v. Howard

• Decision Date: 09 January 1997
• Citation: 653 N.Y.S.2d 102,235 A.D.2d 232
• Parties: The PEOPLE of the State of New York, Respondent, v. Tracy HOWARD, Defendant-Appellant (Two Cases).
• Court: New York Supreme Court — Appellate Division

Page 102

653 N.Y.S.2d 102

235 A.D.2d 232

The PEOPLE of the State of New York, Respondent, v. Tracy HOWARD, Defendant-Appellant (Two Cases).

Supreme Court, Appellate Division,

First Department.

Jan. 9, 1997.

David M. Cohn, for Respondent in No. 59504.

Leslie B. Green, for Defendant-Appellant in Nos. 59504, 59505.

Jennifer A. Daskevich, for Respondent in No. 59505.

Before SULLIVAN, J.P., and WALLACH, RUBIN, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Patricia Williams, J.), rendered December 12, 1991, convicting defendant, upon his guilty plea, of attempted robbery in the first degree, and sentencing him to a term of 2 to 6 years, and judgment, Supreme Court, Bronx County (Irene Duffy, J.), rendered January 27, 1992, convicting defendant, after a jury trial on two consolidated indictments, of five counts of robbery in the first degree, and sentencing him to five concurrent terms of 7 to 21 years, all to run consecutively to his sentence imposed in New York County, unanimously affirmed.

Defendant was not deprived of his statutory or constitutional right to a speedy trial. At most, only 165 days are chargeable to the People pursuant to CPL 30.30, even if the period preceding November 7, 1990 is included in the calculations. Contrary to defendant's contention, the People's November 28, 1990 declaration of readiness was not rendered "illusory" by their filing of a consolidation motion a few days later. Moreover, once they answered ready, they were not required to declare continuously their readiness after the motion to consolidate was granted (People v. Reid, 214 A.D.2d 396, 625 N.Y.S.2d 171). Defendant's remaining procedural and substantive arguments concerning the CPL 30.30 motion are without merit. Nor did the almost 18-month delay between arraignment and trial deprive defendant of his constitutional right to a speedy trial (People v. Neal, 208 A.D.2d 400, 617 N.Y.S.2d 166, lv. denied 84 N.Y.2d 1014, 622 N.Y.S.2d 925, 647 N.E.2d 131; People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303).

The court properly granted the motion to consolidate the two Bronx indictments involving three separate robberies of bodegas close in time and proximity to each other, where the identification evidence in the cases were strong, and the cases were not complex (see, People v. Negron, 166 A.D.2d 165, 564 N.Y.S.2d 284, lv. denied 77 N.Y.2d 909, 569 N.Y.S.2d 941, 572 N.E.2d 624).

The photo array and line-up were not unduly suggestive, where, in each instance, our review of the photographs reveals that the fillers shared similar features with defendant and there was no "substantial likelihood that defendant would be singled out for identification" (People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert....