People v. Williams

• Decision Date: 29 July 1996
• Citation: 646 N.Y.S.2d 142,229 A.D.2d 603
• Parties: The PEOPLE, etc., Respondent, v. Glen WILLIAMS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 142

646 N.Y.S.2d 142

229 A.D.2d 603

The PEOPLE, etc., Respondent, v. Glen WILLIAMS, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 29, 1996.

Yasmin Daley Duncan, Brooklyn, for appellant.

William L. Murphy, District Attorney, Staten Island (Karen F. McGee and Jonathan J. Silbermann, of counsel), for respondent.

Before BRACKEN, J.P., and MILLER, COPERTINO and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Kuffner, J.), rendered January 10, 1994, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED the the judgment is affirmed.

The defendant contends that the Supreme Court erred in denying his motion to dismiss the indictment pursuant to CPL 30.30 because several periods of delay after the People announced their readiness for trial should have been charged to the People. We disagree. Contrary to the defendant's contention, the record supports the court's conclusion that the People diligently attempted to secure his presence in court while he was incarcerated on unrelated charges, first in Nassau County, and then in New Jersey. Accordingly, the court properly declined to charge the People for the delay attributable to the defendant's incarceration on these unrelated charges (see, CPL 30.30[4][e]; People v. Anderson, 66 N.Y.2d 529, 540, 498 N.Y.S.2d 119, 488 N.E.2d 1231; People v. Wills, 201 A.D.2d 519, 607 N.Y.S.2d 409). Moreover, there is no merit to the defendant's claim that the court should have charged the People with an additional period of postreadiness delay because they did not make diligent efforts to locate him after a bench warrant for his appearance was issued. Once the People have announced their readiness for trial, "there is no requirement that they exercise due diligence to locate the defendant when he has voluntarily absented himself from the proceedings, since the People did not contribute to the delays" (People v. Cephas, 207 A.D.2d 903, 616 N.Y.S.2d 668; see also, People v. McKenna, 76 N.Y.2d 59, 556 N.Y.S.2d 514, 555 N.E.2d 911; People v. Cropper, 202 A.D.2d 603, 609 N.Y.S.2d 288). In addition, the court properly excluded the delay between September 29, 1989, and November 17, 1989, in excess of the seven day adjournment requested by the People on September 29, 1989 (see, People v. Bailey, 221 A.D.2d 296, 634 N.Y.S.2d 105; People v. Urraea, 214 A.D.2d 378, 625 N.Y.S.2d 163), as well as the one month period given to defense counsel to prepare his speedy trial motion (see, CPL 30.30[4][a]; People v. Brown, 136 A.D.2d 715, 523 N.Y.S.2d 911).

The defendant's further claim that he was deprived of his constitutional right to a speedy trial is unpreserved for appellate review (see, People v. Lieberman, 47 N.Y.2d 931, 419 N.Y.S.2d 946, 393 N.E.2d 1019; People v. Wait, 226 A.D.2d 278, 655 N.Y.S.2d 330; People v. Cropper, supra). In any event, after a consideration of the factors delineated in People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303, we find that the defendant was not denied a speedy trial since much of the delay resulted from his deliberate avoidance of apprehension (see, People v. Cropper, supra; People v Morales, 199 A.D.2d 284, 605 N.Y.S.2d 944), and there is no indication that the defense was impaired by reason of the delay (see, Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101; People v. Penna, 203 A.D.2d 392, 612 N.Y.S.2d 905).

The...