People v Accetta (Russell)
Annotate this CaseDecided on September 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and MOLIA, JJ
2005-1499 N CR.
The People of the State of New York, Respondent,
against
Russell Accetta, Appellant.
Appeal from a judgment of the District Court of Nassau County, First District (Denise L. Sher, J.), rendered September 12, 2005. The judgment convicted defendant, upon a jury verdict, of assault in the third degree, harassment in the second degree and criminal possession of a weapon in the fourth degree.
Judgment of conviction affirmed.
On March 7, 2004, defendant was initially charged in a felony complaint with assault in the second degree (Penal Law § 120.05 [2]). Thereafter, the People filed a prosecutor's information charging defendant with two counts of assault in the third degree (Penal Law § 120.00 [1], [2]), harassment in the second degree (Penal Law § 240.26 [1]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]). Defendant was arraigned on the charges contained in said prosecutor's information on September 14, 2004, and the felony charge was dismissed. The evidence adduced at trial established that after the complainant fired paintballs from a moving vehicle at defendant's home, a car chase ensued, and the complainant was stopped by defendant and his son. At trial, the People's witnesses testified that defendant took a metal baseball bat from his son, approached complainant who was walking away from him at the time, and hit complainant twice on the head with the bat, causing physical injuries. Defendant was acquitted of violating Penal Law section 120.00 (1) (assault in the third degree; intentionally causing physical injury), and found guilty of violating Penal Law section 120.00 (2) (assault in the third degree; recklessly causing physical injury), Penal Law section 240.26 (1) and [*2]Penal Law section 265.01 (2).
Prior to trial, defendant moved to dismiss the charges on speedy trial grounds alleging that the People failed to announce their readiness for trial within 184 days of the date the action was commenced. The court below denied defendant's speedy trial motion.
The speedy trial time period applicable to the charge in the prosecutor's information is calculated from the date of the filing of the felony complaint (CPL 30.30 [5] [c]). Accordingly, the People had six months (184 days) from March 7, 2004 in which to announce their readiness for trial. From March 7, 2004 to August 10, 2004, the People conceded that 166 days were chargeable to them. The record reflects that the People requested a 10-day adjournment from August 10 through August 20, and does not reflect that defendant's counsel consented to the People's request for this adjournment. However, codefendant's attorney indicated that he was not available on August 20 and requested that the matter be adjourned to September 1, 2004. The People argued that the entire time period is excludable time.
Generally, defense counsel's failure to object to an adjournment requested by the People will not constitute consent by the defendant to such an adjournment (see People v Smith, 82 NY2d 676, 678 [1993]; People v Liotta, 79 NY2d 841, 843 [1992]). However, a codefendant's request for an adjournment may not be charged to the People with respect to any of the defendants (see CPL 30.30 [4] [b], [d]; People v Almonte, 267 AD2d 466 [1999]). The entire period from August 10 through September 1 is not excludable since the People requested a 10-day adjournment from August 10 to August 20 (see People v Matthews, 227 AD2d 313, 314 [1986]; People v Allen, 9 Misc 3d 135[A], 2005 NY Slip Op 51681[U] [App Term, 9th & 10th Jud Dists]; see also People v Williams, 32 AD3d 403, 405 [2006]). However, the remaining period of time thereafter requested by codefendant's counsel to September 1, 2004 is excludable (id.).
Defendant argues that the period of time from December 20, 2004 through January 10, 2005 is chargeable to the People. At the proceedings conducted on December 20, 2004, defense counsel initially waived a jury trial, but after a discussion off the record, he requested a jury trial. The People announced that "they do have [their] witnesses available," but the court indicated that a jury would not be available until January 3, 2005. The People argued that their statement was sufficient to indicate their trial readiness, and that the time period from December 20, 2004 through January 3, 2005, is excludable time since the delay was caused by the court. We find that the People's statement regarding the availability of their witnesses was indicative of their trial readiness (see generally People v Wilson, 86 NY2d 753, 754 [1995]), and the delay caused by the court, such as not having a jury available, is not to be charged to the People since it was not within their control to have prospective jurors made available for jury selection (see generally People v England, 84 NY2d 1, 4 [1994]; People v O'Neal, 99 AD2d 844, 845 [1984]).
The record indicates that the People requested that the matter be adjourned from January 3 through January 10, 2005 because their witnesses were not available during that time period as some of the witnesses had gone skiing during their college winter vacation. The court must exclude periods of delay occasioned by exceptional circumstances, which includes the unavailability of a material witness, where the People have exercised due diligence in procuring the attendance of such witness for trial (see CPL 30.30 [4] [g]; People v Thomas, 210 AD2d 763 [1994]; People v Mims, 155 Misc 2d 163 [1992]). The testimony by the prosecutor during the [*3]speedy trial hearing demonstrated that she did not subpoena the witnesses, and she admitted that she did not want to disturb their ski trip. In our opinion, the People did not exercise due diligence in procuring the attendance of material witnesses for trial. Therefore, the exclusion for periods of delay occasioned by exceptional circumstances is not applicable here, and the time from January 3 to January 10, 2005 (7 days) is chargeable to the People.
Review of the next time period from May 23 through June 6, 2005, which defendant argues is chargeable to the People, is foreclosed because defendant did not make a further speedy trial motion covering this period (see People v Elipopulos, 290 AD2d 301, 302 [2002]; People v Heine, 238 AD2d 212 [1997]). In any event, this time is not chargeable to the People since it constituted a reasonable time to prepare for trial after the denial of defendant's speedy trial motion (People v Forbes, 7 AD3d 473, 474 [2004]; People v Elipopulos, 290 AD2d 301, supra). We find that the People should
be charged with a total of 183 days out of 184 days, and the speedy trial motion was properly denied.
Defendant's further contention, that the evidence was insufficient as a matter of law to establish his guilt of reckless assault in the third degree (Penal Law § 120.00 [2]) because the alleged act of hitting complainant twice on the head with a baseball bat could only have been considered an intentional act, if not justified, was not preserved for appellate review (CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]). In any event, the same conduct may either constitute recklessness or an intentional act depending on the circumstances (see People v Dodson, 10 Misc 3d 132[A], 2005 NY Slip Op 52030[U] [App Term, 1st Dept]). In People v Cameron (123 AD2d 325 [1986]), the court rejected defendant's argument that striking the victim with a glass beer pitcher could only be viewed as an intentional act (see also People v Gambetta, 33 AD3d 537 [2006]). In the instant case, the jury reasonably concluded that defendant did not intend to cause injury to the complainant, and instead found that he acted recklessly.
Defendant's contention that the prosecution failed to disprove his justification defense by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d at 19). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to disprove defendant's justification defense beyond a reasonable doubt (see CPL 35.15; People v Feliciano, 28 AD3d 492 [2006]). The jury was free to reject defendant's justification defense (see People v Richardson, 249 AD2d 379, 380 [2002]). Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (People v Romero, 7 NY3d 633 [2006]). Its determination should be afforded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v Garafolo, 44 AD2d 86 [1974]). Upon the exercise of our factual review power, we are satisfied that the judgment convicting defendant of assault in the third degree (Penal Law § 120.00 [2]),
harassment in the second degree (Penal Law § 240.26 [1]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) was not against the weight of the evidence.
Rudolph, P.J., McCabe and Molia, JJ., concur.
[*4]
Decision Date: September 21, 2007
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