Opinion
KA 00-00278
February 1, 2002.
Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered January 4, 2000, convicting defendant after a jury trial of, inter alia, criminal possession of a weapon in the third degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (DREW R. DU BRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (NANCY A. GILLIGAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, GORSKI, AND LAWTON, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Contrary to the contention of defendant, he was not denied his statutory right to a speedy trial ( see, CPL 30.30). Although the People requested a one-week adjournment due to the unavailability of a key witness, the subsequent 79-day delay is not chargeable to the People because it was occasioned by the unavailability of the court due to court congestion ( see, People v. Johnson, 209 A.D.2d 986, lv denied 84 N.Y.2d 1033). Thus, the record establishes that the period of time chargeable to the People is less than six months. Supreme Court properly denied defendant's request for a missing witness charge with respect to several police officers who were involved in the surveillance of defendant. The testimony of those officers would have been cumulative to the testimony of those officers who testified at trial ( see, People v. Macana, 84 N.Y.2d 173, 177), and in any event the record does not support defendant's contention that the officers would have testified in accordance with his legal theory ( see, People v. Schiano, 198 A.D.2d 820, lv denied 82 N.Y.2d 930). The sentence is not unduly harsh or severe.