People v. Johnson
| Decision Date | 13 November 1990 |
| Parties | The PEOPLE, etc., Respondent, v. Eugene JOHNSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ricco & Villanueva, New York City (Gary S. Villanueva, of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Roseann B. MacKechnie and Camille O'Hara Gillespie, of counsel), for respondent.
Before BROWN, J.P., and LAWRENCE, KUNZEMAN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered April 21, 1987, convicting him of rape in the first degree, robbery in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that he was deprived of a fair trial by a remark made by the prosecutor during summation regarding the defendant's failure to call his former attorney as a witness to testify as to the whereabouts of the defendant's original employment time sheets. The defendant claimed to be at work at the time of the crime and the time sheets allegedly documented that fact. Since the defendant failed to timely object to the subject remark, the issue has not been preserved for appellate review (see, People v. Udzinski, 146 A.D.2d 245, 248, 541 N.Y.S.2d 9). In any event, since the defendant elected to present affirmative proof of his alibi, his failure to call a material witness, under his control, may be brought to the jury's attention (see, People v. Wilson, 64 N.Y.2d 634, 636-636, 485 N.Y.S.2d 40, 474 N.E.2d 248; People v. Shaw, 112 A.D.2d 958, 959-960, 492 N.Y.S.2d 470). As such, the prosecutor's comment was not error.
Since the defense failed to make a request to the trial court for the imposition of sanctions against the People for the destruction of the "rape kit", the defendant has waived any claim of substantial prejudice (see, People v. Rashid, 164 A.D.2d 951, 560 N.Y.S.2d 58 (1990); People v. Udzinski, supra ). The record reveals that the rape kit was compiled on May 18, 1984, approximately a year before the defendant's arrest. It was destroyed on December 16, 1985, apparently in accordance with the normal procedure of the property clerk's office. It was not until June 12, 1986, that defense counsel specifically requested that the rape kit be made available for inspection. Under the circumstances, the destruction of the rape kit does not warrant reversal.
The defendant contends that he was deprived of his right to a speedy trial since the felony complaint was filed on October 16, 1984, and the People did not declare their readiness for trial until 237 days later on June 10, 1985. The People contend that 64 of the 237 days should be excluded in computing the time within which they were required to be ready for trial. Pursuant to the "exceptional circumstances" exclusion of CPL 30.30(4)(g), the record reveals that, during these 64 days, the Assistant District Attorney was actively and diligently pursuing information to verify the defendant's alibi. As such, we find that the prosecution's credible and vigorous activity in pursuing the alibi...
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