Opinion
570111/17
03-15-2022
The People of the State of New York, Respondent, v. Dwayne Richards, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Julio Rodriguez III, J. at speedy trial motion; Mary V. Rosado, J., at trial and sentencing), rendered January 25, 2017, after a nonjury trial, convicting him of harassment in the second degree, and imposing sentence.
PRESENT: Edmead, P.J., Brigantti, Hagler, JJ.
PER CURIAM.
Judgment of conviction (Julio Rodriguez III, J. at speedy trial motion; Mary V. Rosado, J. at trial and sentencing), rendered January 25, 2017, affirmed.
The motion court properly denied defendant's CPL 30.30 speedy trial motion. The 21 day period at issue - April 20, 2015 to May 11, 2015 - was correctly excluded as "occasioned by exceptional circumstances" (CPL 30.30[4][g] ; see People v Goodman, 41 N.Y.2d 888, 889 [1977]). The record, including the supplemental papers requested by the Court, sufficiently establishes the unavailability of the complaining witness' attorney - retained by complainant in a pending criminal prosecution against her - because of the terminal illness and immediate death of counsel's daughter, which constituted an exceptional circumstance (see People v Harden, 6 A.D.3d 181 [2004], lv denied 3 N.Y.3d 641 [2004]; People v Rodriguez, 212 A.D.2d 368 [1995], lv denied 85 N.Y.2d 913 [1995]). As Criminal Court (Julio Rodriguez III, J.) recognized:
"'no amount of diligence' on the[] part of the People would have alleviated the family emergency or made the complaining witness available under these circumstances... Contrary to defendant's argument, [] the complaining witness' privately retained defense counsel was not fungible and could not have simply been replaced. Furthermore, in order for the complaining witness, who was a defendant in another prosecution, to make an informed decision on whether she should testify in the instant case without counsel present, she would need to consult with her attorney who was, by defense counsel's own admission, unavailable."
The verdict convicting defendant of second degree harassment (see Penal Law § 240.26[1]) was not against the weight of the evidence (see People Danielson, 9 N.Y.3d 342, 348-349 [2007]). There is no basis upon which to disturb the trial court's determinations concerning credibility, including its resolution of minor inconsistencies in testimony. The evidence, including photographs of the victim's injuries and the arresting officer's testimony, established that defendant threatened to kill the complainant during a domestic dispute, then pushed her to the ground and hit her before dragging her to a bedroom and choking her (see People v Mack, 76 A.D.3d 467 [2010], lv denied 15 N.Y.3d 922 [2010]; People v Correa, 75 A.D.3d 478 [2010], lv denied 15 N.Y.3d 892 [2010]). The fact that the court acquitted defendant on other charges does not require a different conclusion (see People v Gutierrez, 91 A.D.3d 491 [2012]).
All concur