Opinion
November 16, 1994
Appeal from the Supreme Court, Monroe County, Harvey, J.
Present — Pine, J.P., Lawton, Fallon, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Supreme Court properly denied defendant's motion to dismiss the indictment on speedy trial grounds (see, CPL 30.30). Although the People requested a one-week adjournment due to the unavailability of a witness, the subsequent 53-day delay until commencement of the trial is not chargeable to the People because it was occasioned by the unavailability of the court due to court congestion (see, People v. Anderson, 66 N.Y.2d 529, 535-536; People v. Giordano, 56 N.Y.2d 524, affg 81 A.D.2d 1003; People v. Taverez, 147 A.D.2d 355, 356, lv denied 73 N.Y.2d 1022). Thus, the record establishes that the period of time chargeable to the People is less than six months.
The court properly denied defendant's request for a missing witness charge based on the People's failure to call a police officer who was near the location where an undercover officer purchased cocaine from defendant (see, People v. Ortiz, 83 N.Y.2d 989, 990). The People established that the testimony of the police officer would have been cumulative and that he was unavailable because he was recovering from a gunshot wound (see, People v. Gonzalez, 68 N.Y.2d 424, 428; People v. DeJesus, 190 A.D.2d 1012, 1014, lv denied 81 N.Y.2d 969).
Lastly, we reject defendant's contention that the court committed reversible error in its charge to the jury on circumstantial evidence and reasonable doubt (see, People v. Miller, 194 A.D.2d 230, lv denied 83 N.Y.2d 913).