Opinion
05-10-2017
The PEOPLE, etc., respondent, v. David BROWN, appellant.
Steven A. Feldman, Uniondale, NY (Arza Feldman of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Merri Turk Lasky of counsel), for respondent.
Steven A. Feldman, Uniondale, NY (Arza Feldman of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Merri Turk Lasky of counsel), for respondent.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered October 27, 2015, convicting him of criminal possession of a weapon in the second degree (four counts) and conspiracy in the fourth degree, after a nonjury trial, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court properly denied the defendant's motion to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial (see CPL 30.30 ). In felony cases, the People are required to be ready for trial within six months after the commencement of the criminal action (see CPL 30.30[1][a] ). Contrary to the defendant's contention, the period of time in question, 55 days, during which one of the witnesses was unavailable due to his illness and a recommendation from his doctor that he not travel to New York, was excludable as an exceptional circumstance (see CPL 30.30[4][g][i] ; People v. Zirpola, 57 N.Y.2d 706, 708, 454 N.Y.S.2d 702, 440 N.E.2d 787 ; People v. Alcequier, 15 A.D.3d 162, 163, 788 N.Y.S.2d 389 ; People v. McLeod, 281 A.D.2d 325, 327, 722 N.Y.S.2d 507 ; People v. Celestino, 201 A.D.2d 91, 95, 615 N.Y.S.2d 346 ; cf. People v. Stanley, 275 A.D.2d 423, 712 N.Y.S.2d 623 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the fact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 376–377, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) constituted a proper exercise of discretion, and did not deprive the defendant of the right to testify on his own behalf (see People v. Smith, 18 N.Y.3d 588, 594, 942 N.Y.S.2d 5, 965 N.E.2d 232 ; People v. Hayes, 97 N.Y.2d 203, 207–208, 738 N.Y.S.2d 663, 764 N.E.2d 963 ; People v.
Manigat, 136 A.D.3d 614, 615, 24 N.Y.S.3d 397 ; People v. White, 60 A.D.3d 1095, 1096, 877 N.Y.S.2d 339 ; People v. McLaurin, 33 A.D.3d 819, 820, 826 N.Y.S.2d 279 ).
The defendant's remaining contention is unpreserved for appellate review (see CPL 470.05[2] ; People v. Brown, 262 A.D.2d 328, 329, 690 N.Y.S.2d 459 ) and, in any event, without merit.