People v Johnson

People v Johnson 2012 NY Slip Op 07757 Decided on November 15, 2012 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 November 15, 2012
Friedman, J.P., Sweeny, Moskowitz, Freedman, Román, JJ.
8503 5804/06

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

v

Lionel Johnson, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Heidi Bota of
counsel), for appellant.
Lionel Johnson, appellant pro se.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia
Curran of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J. at speedy trial motion; Marcy L. Kahn, J. at plea and sentencing), rendered May 28, 2009, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him to a term of 15 years, unanimously affirmed.

Based on our analysis of the Taranovich factors, we conclude that the court properly denied defendant's constitutional speedy trial motion (see People v Taranovich, 37 NY2d 442, 446 [1975]). The original charge, second-degree murder, was extremely serious. Although there was a 31-month delay between defendant's arrest and trial, and he was incarcerated during that period, defendant only claims that 18 months were attributable to the People. The reasons for that period of delay were matters such as scheduling conflicts, the prosecutor's illness and the unavailability of witnesses. While some of the reasons for the delay were less than compelling, there is no evidence of bad faith. Finally, defendant has not substantiated his claim of prejudice. In particular, defendant fled after the homicide and was at large for a two-year period that is not at issue on this appeal. Defendant has not established that the alleged prejudice resulted from the People's delay, as opposed to resulting from the delay in locating defendant.

Defendant made a valid waiver of his right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]). In any event, regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence. [*2]

We have considered defendant's remaining contentions, including those raised in his pro se brief, and find them to be unavailing.

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

ENTERED: NOVEMBER 15, 2012

CLERK