Opinion
No. 215 SSM 28.
Decided June 30, 2011.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered June 18, 2010. The Appellate Division affirmed a judgment of the Erie County Court (Thomas P. Franczyk, J.), which had convicted defendant, upon a jury verdict, of robbery in the first degree.
Defendant was a suspect in a robbery but could not be located. He was indicted in absentia on October 25, 2004. The People declared their readiness for trial three days later. Defendant thereafter was located in Ohio and, on July 8, 2005, federal marshals attempted to arrest him there on an Erie County robbery warrant. Defendant, however, escaped. He was arrested in Ohio three days later and charged in Ohio with federal and Ohio crimes as a result of injuring the federal marshals in the course of his escape. The Ohio charges were resolved on September 8, 2005, resulting in a sentence of nine months in jail. Approximately two months later, defendant was indicted by a federal grand jury for assaulting a federal agent, and the United States Attorney's office notified the Erie County District Attorney's office on May 3, 2006 that defendant had pleaded guilty and was awaiting sentencing. Defendant began serving his federal sentence of four years in August 2006, and in October 2006 the Erie County District Attorney received a letter from defendant requesting that he be delivered to Erie County to resolve the instant charge. In December 2006 the District Attorney filed a writ of habeas corpus with federal authorities seeking to have defendant transferred to Erie County for trial. Defendant thereafter was brought to New York on January 4, 2007 and was arraigned the following day.
People v Mungro, 74 AD3d 1902, affirmed.
Charles J. Greenberg, Tonawanda, for appellant.
Frank A. Sedita, III, District Attorney, Buffalo ( Michael J. Hillery of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The People did not violate defendant's right to a speedy trial pursuant to CPL 30.30 by failing to request his presence in New York from federal custody in Ohio until his prosecution there was completed and he began serving his sentence. The People had no statutory authority to request defendant's presence until such time ( see CPL 580.20, art IV [a]) and, therefore, should not be penalized for the period of time that defendant was unavailable for trial in New York ( see People v Vrlaku, 73 NY2d 800, 802).
Defendant's claim that the evidence was legally insufficient to support the verdict is unpreserved, and his ineffective assistance of counsel claim is without merit.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed in a memorandum.