Opinion
12-28-2023
The PEOPLE of the State of New York, Respondent, v. Nate MILLER, Defendant–Appellant.
Caprice R. Jenerson, Office of Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (David Gagne of counsel), for respondent.
Caprice R. Jenerson, Office of Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (David Gagne of counsel), for respondent.
Manzanet–Daniels, J.P., Webber, Friedman, Shulman, Rosado, J J.
Judgment, Supreme Court, New York County (Maxwell Wiley, J., at speedy trial motions; Anthony R. Ferrara, J., at jury trial; Ellen Biben, J., at sentencing), rendered December 1, 2017, convicting defendant of robbery in the first degree (two counts) and robbery in the second degree (six counts), and sentencing him to an aggregate term of six years, unanimously affirmed.
[1, 2] The court properly denied defendant’s speedy trial motions. Defendant’s challenges to the first three periods of delay at issue are unpreserved (see People v. Beasley, 16 N.Y.3d 289, 292–293, 921 N.Y.S.2d 178, 946 N.E.2d 166 [2011]), and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits. The periods from December 10, 2014 to February 25, 2015, and November 10, 2015 to December 7, 2015, were excludable as reasonable time to prepare for hearings and trial after the court’s rulings on defendant’s omnibus motion and suppression motion (CPL 30.30[4][a]; see People v. Davis, 80 A.D.3d 494, 494–495, 915 N.Y.S.2d 250 [1st Dept. 2011]). The period from October 7, 2015 to October 28, 2015 was excludable, notwithstanding the People’s lack of readiness, because defendant’s counsel was unable to appear as a result of being on trial in another matter and had requested the adjournment (CPL 30.30[4][f]; see People v. Brown, 149 A.D.3d 584, 584, 53 N.Y.S.3d 626 [1st Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017]).
[3, 4] As to defendant’s challenge to the period of delay from February 25, 2016 to April 6, 2016, the court improperly found that time to be excludable on grounds of "exceptional circumstances" (CPL 30.30[4][g][i]). The People failed to show that they exercised the requisite due diligence to attempt to secure the appearance of the necessary witness (see People v. Zirpola, 57 N.Y.2d 706, 708, 454 N.Y.S.2d 702, 440 N.E.2d 787 [1982]; People v. Ricart, 153 A.D.3d 421, 422, 60 N.Y.S.3d 30 [1st Dept. 2017], appeal dismissed 31 N.Y.3d 1074, 78 N.Y.S.3d 271, 102 N.E.3d 1053 [2018]). Nevertheless, only the 30–day adjournment requested by the prosecutor was chargeable to the People; the remainder of the adjourned period, requested by the codefendant’s counsel, was excludable (see People v. Brown, 28 N.Y.3d 392, 404, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016]). This raises the total chargeable days to 161, which still falls short of the 184 days necessary to qualify for dismissal (CPL 30.30[1][a]).
[5] The verdict convicting defendant of first-degree robbery was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]). The evidence adduced at trial established that the codefendant was armed with a deadly weapon (metal knuckles) in the course of the commission of the robberies (Penal Law §§ 10.00[12], 160.15[2]), and the People were not required to prove that defendant knew that his codefendant was carrying the weapon (see People v. Cruz, 309 A.D.2d 564, 565, 765 N.Y.S.2d 508 [1st Dept. 2003], lv denied 1 N.Y.3d 570, 775 N.Y.S.2d 787, 807 N.E.2d 900 [2003]). Accordingly, the court properly declined to instruct the jury on Penal Law § 20.15 (see id.).
Defendant did not preserve his contention that the prosecutor improperly advanced a speculative theory of liability on summation (CPL 470.05[2]), and we decline to address it in the interest of justice. As an alternative holding, we find that the challenged remarks constituted fair comment on the evidence and were reasonable inferences that may be drawn from the record (see People v. Johnson, 76 A.D.3d 937, 907 N.Y.S.2d 494 [1st Dept. 2010], lv denied 15 N.Y.3d 953, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010]).