People v Okoli (Kenechukwu)
Annotate this CaseDecided on November 29, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
2016-1378 N CR
The People of the State of New York, Respondent,
against
Kenechukwu Okoli, Appellant.
Kenechukwu Okoli, Esq., appellant pro se. Nassau County District Attorney (Sarah S. Rabinowitz and Amanda Manning of counsel), for respondent.
Appeal from judgments of the District Court of Nassau County, First District (Tricia M. Ferrell, J.), rendered April 25, 2016. The judgments convicted defendant, upon jury verdicts, of assault in the third degree and leaving the scene of an incident without reporting, respectively, and imposed sentences. The appeal brings up for review the denial of defendant's motion to dismiss the accusatory instruments on the ground that he was denied his statutory right to a speedy trial.
ORDERED that the judgments of conviction are affirmed.
On December 17, 2013, defendant was provided with two appearance tickets; one charging him with assault in the third degree (Penal Law § 120.00 [3]), and the other charging him with leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600 [2] [a]). The tickets instructed defendant to appear in court on January 7, 2014, on which date defendant was arraigned on two accusatory instruments charging him with the respective offenses. The matter was adjourned to February 20, 2014, on which date defendant filed an omnibus motion. Thereafter, hearings were scheduled and held. In March 2015, defendant moved to dismiss the accusatory instruments on the ground that his statutory right to a speedy trial had been violated. By order dated May 26, 2015, the District Court (Tricia M. Ferrell, J.) denied the motion, finding that, from the time of defendant's arraignment on January 7, 2014 to [*2]the filing of the motion in March 2015, only 38 days of delay were chargeable to the People. Following a jury trial, defendant was convicted of both charges and was sentenced to, among other things, concurrent three-year terms of probation.
On appeal, defendant contends that the District Court improperly denied his statutory speedy trial motion; that the evidence was legally insufficient; that the verdicts were against the weight of the evidence and repugnant; and that the sentences of probation were improper.
In regard to his statutory speedy trial contention, defendant argues that, in addition to the 38 days of delay the District Court charged to the People, they should have also been charged with 21 days from December 17, 2013 (the day he was issued the appearance tickets and the day, defendant asserts, the action commenced) to January 7, 2014 (the day he was arraigned), and 44 days from January 7th to February 20, 2014 (when he filed his omnibus motion), for a total of 103 days. It is uncontroverted that, on December 17th, defendant was provided with two appearance tickets instructing him to appear in court on January 7th, on which date defendant was arraigned on two accusatory instruments. Since defendant was charged with a class A misdemeanor (i.e., assault in the third degree), the People were required to be ready for trial within 90 days of the commencement of the action (see CPL 30.30 [1] [b]). Contrary to defendant's argument, the action was commenced on January 7th, the date on which defendant appeared in court for the first time in response to the appearance tickets (see CPL 30.30 [5] [b]; People v Stirrup, 91 NY2d 434 [1998]). Therefore, the 21 days from December 17th to January 7th are not chargeable to the People. In view of the foregoing, we need not decide whether the People should have been charged with the 44 days from January 7th to February 20, 2014, as argued by defendant, since, in any event, only a total of 82 days would then be chargeable to the People. Consequently, defendant's statutory speedy trial motion was properly denied.
All but one of defendant's arguments in support of his challenge to the legal sufficiency of the evidence is unpreserved for appellate review since, at trial, he failed to raise the specific arguments he now makes on appeal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Hines, 97 NY2d 56, 61 [2001]; People v Gray, 86 NY2d 10 [1995]), and we decline to review them in the interest of justice. Defendant's argument that the trial evidence differed from what was alleged in the accusatory instruments has been preserved for appellate review since he moved for a trial order of dismissal on this basis. Upon a review of the record, we find that the testimonies of the complainant and a witness were not inconsistent with what was set forth in the accusatory instruments or their supporting depositions. Consequently, defendant's contention lacks merit.
Since there is no preservation requirement associated with defendant's contention that the verdicts were against the weight of the evidence, we must determine whether all of the elements of the offenses as charged to the jury were proven beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Thiel, 134 AD3d 1237 [2015]). According great deference to the jury's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]), we find that the verdicts convicting defendant of assault in the third degree and leaving the scene of an incident without reporting were not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-646 [2006]).
Defendant's remaining contention with respect to the verdicts is unpreserved for appellate [*3]review, since he did not raise such an objection before the jury was discharged (see CPL 470.05 [2]; People v Alfaro, 66 NY2d 985 [1985]; People v Satloff, 56 NY2d 745 [1982]; People v Jackson, 19 AD3d 614, 615 [2005]), and we decline to review it in the interest of justice (see People v Zamfino, 160 AD3d 779, 780 [2018]).
A review of the record indicates that the imposition of a sentence of probation was neither harsh nor excessive (see People v Suitte, 90 AD2d 80 [1982]). However, we note that the sentencing "court may modify or enlarge the conditions of a sentence of probation or of conditional discharge at any time prior to the expiration or termination of the period of the sentence" (CPL 410.20 [1]). Consequently, defendant, if he be so advised, may seek relief from probation in the District Court (see e.g. People v Velardi, 10 Misc 3d 47, 49 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]; People v LaCoude, 193 Misc 2d 578, 579 [App Term, 2d Dept, 9th & 10th Jud Dists 2002]; People v Payne, 2002 NY Slip Op 40438[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2002]).
Accordingly, the judgments of conviction are affirmed.
GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 29, 2018
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