People v. Thomas
| Decision Date | 16 January 1996 |
| Citation | 637 N.Y.S.2d 174,223 A.D.2d 610 |
| Parties | The PEOPLE, etc., Respondent, v. Duane THOMAS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Daniel L. Greenberg, New York City (Jan Hoth-Uzzo, of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Joyce Slevin, of counsel), for respondent.
Before BALLETTA, J.P., and RITTER, COPERTINO and PIZZUTO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered June 24, 1993, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
We disagree with the defendant's contention that the lineup was unduly suggestive because he was asked to smile. The complainant's description of the perpetrator to the police included that he had a decaying tooth. The detective who organized the lineup testified at the suppression hearing that the complainant identified the defendant and then asked the detective to have all of the participants in the lineup smile so that he could be sure of his identification. There is no evidence in the record that any of the police officers acted improperly or that the lineup was unduly suggestive (see, People v. Neptune, 193 A.D.2d 703, 598 N.Y.S.2d 47).
We find no merit to the defendant's contention that he was denied his statutory right to a speedy trial (see, CPL 30.30). Because the defendant was indicted for a felony, the People were required to be ready for trial within six months from the commencement of the criminal action (see, CPL 30.30[1][a] ). The defendant was indicted on August 28, 1992, and moved pursuant to CPL 30.30 to dismiss the indictment on April 13, 1993. The defendant concedes that the period from November 18, 1992, to December 17, 1992, should be excluded from the time within which the People had to be ready for trial, leaving 199 days of pretrial delay.
Although the Supreme Court charged the People with the 21 days from October 20, 1992, to November 10, 1992, 20 of those days are chargeable to the defendant. The record indicates that on October 20, 1992, the People announced that they were ready for trial, but the defendant was not produced. The court proposed to adjourn the matter to October 21, 1992, but the defense counsel stated that she was not available for the remainder of the week and proposed to adjourn the matter until the following week. The court then asked if November 10, 1992, was satisfactory, and defense counsel agreed. Because the delay from October 21, 1992, to November 10, 1992, was not caused by the People's failure to be ready for trial, but by the unavailability of the defense counsel, who actively participated in setting the adjournment date, the People should have been charged with only one of the 21 days from October 20, 1992, to November 10, 1992 (see, CPL 30.30[4][b]; People v. Morales, 181 A.D.2d 572, 581 N.Y.S.2d 60; People v. Gerstel, 134 A.D.2d 281, 520 N.Y.S.2d 451; cf., People v. Smith, 82 N.Y.2d 676, 678, 601 N.Y.S.2d 466, 619 N.E.2d 403). Although the prosecution did not raise this argument at the Supreme Court, this court is...
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