Opinion
2012-02-14
The PEOPLE, etc., respondent, v. Numa HERNANDEZ, appellant.
White & White, New York, N.Y. (Diarmuid White and Brendan White of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Edward D. Saslaw of counsel), for respondent.
White & White, New York, N.Y. (Diarmuid White and Brendan White of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Edward D. Saslaw of counsel), for respondent.
MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered December 11, 2009, convicting him of attempted murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial.
ORDERED that the judgment is affirmed.
When a defendant is accused of a felony, the indictment must be dismissed unless the People are ready for trial within six months of the commencement of the criminal action ( see CPL 30.30[1][a]; People v. Sinanaj, 291 A.D.2d 513, 739 N.Y.S.2d 392). With respect to periods of delay that occur following the People's statement of readiness, any period of an adjournment in excess of that actually requested by the People is excluded ( see People v. Carter, 91 N.Y.2d 795, 799, 676 N.Y.S.2d 523, 699 N.E.2d 35; People v. Cortes, 80 N.Y.2d 201, 210, 590 N.Y.S.2d 9, 604 N.E.2d 71; People v. Williams, 32 A.D.3d 403, 404–405, 821 N.Y.S.2d 604; People v. Nielsen, 306 A.D.2d 500, 501, 761 N.Y.S.2d 316; People v. Dushain, 247 A.D.2d 234, 236, 669 N.Y.S.2d 30). The total time chargeable to the People was less than the six-month time period provided by CPL 30.30(1)(a). Accordingly, the Supreme Court properly denied the defendant's motion to dismiss the indictment pursuant to CPL 30.30.
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in disqualifying a sworn juror as grossly unqualified to serve on the jury, as he could not unequivocally state that he could reach a fair and impartial decision ( see CPL 270.35; People v. Lennon, 37 A.D.3d 853, 830 N.Y.S.2d 770; People v. Defina, 256 A.D.2d 586, 682 N.Y.S.2d 878; People v. White, 204 A.D.2d 750, 613 N.Y.S.2d 34; People v. Galvin, 112 A.D.2d 1090, 492 N.Y.S.2d 836).
The Supreme Court properly admitted the tape of a telephone call to the 911 emergency number under the present sense impression exception to the hearsay rule. The time delay between the occurrence of the events and the call was not sufficient to destroy the indicia of reliability upon which this hearsay exception rests ( see People v. Vasquez, 88 N.Y.2d 561, 647 N.Y.S.2d 697, 670 N.E.2d 1328; People v. York, 304 A.D.2d 681, 757 N.Y.S.2d 495; People v. Smith, 267 A.D.2d 407, 408, 700 N.Y.S.2d 227).
The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review, as he did not object to the remarks at issue ( see CPL 470.05[2]; People v. Wright, 90 A.D.3d 679, 933 N.Y.S.2d 887). In any event, the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to defense counsel's summation, or do not warrant reversal ( see People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564; People v. Valerio, 70 A.D.3d 869, 894 N.Y.S.2d 157).
“The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions” ( People v. Rivera, 71 N.Y.2d 705, 708, 530 N.Y.S.2d 52, 525 N.E.2d 698; see U.S. Const. Sixth Amend.; N.Y. Const., art. I, § 6; People v. Collado, 90 A.D.3d 672, 672, 933 N.Y.S.2d 738). Here, the defendant was not deprived of the effective assistance of counsel under the New York Constitution since, viewing defense counsel's performance in totality, counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400; People v. Collado, 90 A.D.3d at 673, 933 N.Y.S.2d 738; People v. Vaughan, 48 A.D.3d 1069, 1070, 850 N.Y.S.2d 735, cert. denied 555 U.S. 910, 129 S.Ct. 252, 172 L.Ed.2d 190). Further, the defendant was not deprived of the effective assistance of counsel under the Federal Constitution ( see Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674).