People v Rivera

People v Rivera 2011 NY Slip Op 07275 Decided on October 18, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 18, 2011
Mazzarelli, J.P., Moskowitz, Acosta, Renwick, DeGrasse, JJ.
5734 4468/08

[*1]The People of the State of New York, Respondent,

v

Angelo Rivera, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Angie Louie of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David P.
Stromes of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J. at speedy trial motion; Daniel P. FitzGerald, J. at jury trial and sentencing), rendered December 11, 2009, convicting defendant of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.

The court properly denied defendant's speedy trial motion. Defendant did not preserve his claim that the adjournment following the court's decision to order a hearing on defendant's suppression motion should have been charged to the People (see People v Beasley, 16 NY3d 289, 292 [2011]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see CPL 30.30[4][a]; People v Davis, 80 AD3d 494 [2011]; People v Green, 90 AD2d 705 [1982], lv denied 58 NY2d 784 [1982]). This determination renders the excludability of the remaining challenged period academic. In any event, the other challenged period was properly excluded due to the unavailability of a principal prosecution witness for medical reasons (CPL 30.30[4][g]; People v Alcequier, 15 AD3d 162, 163 [2005], lv denied 4 NY3d 851 [2005]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 18, 2011

CLERK