Opinion
2011-10-18
The PEOPLE of the State of New York, Respondent,v.Angelo RIVERA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Angie Louie of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Judgment, Supreme Court, New York County (Renee A. White, J. at speedy trial motion; Daniel P. FitzGerald, J. at jury trial and sentencing), rendered December 11, 2009, convicting defendant of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 years, unanimously affirmed.
The court properly denied defendant's speedy trial motion. Defendant did not preserve his claim that the adjournment following the court's decision to order a hearing on defendant's suppression motion should have been charged to the People ( see People v. Beasley, 16 N.Y.3d 289, 292, 921 N.Y.S.2d 178, 946 N.E.2d 166 [2011] ), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits ( see CPL 30.30[4] [a]; People v. Davis, 80 A.D.3d 494, 915 N.Y.S.2d 250 [2011]; *216 People v. Green, 90 A.D.2d 705, 455 N.Y.S.2d 368 [1982], lv. denied 58 N.Y.2d 784, 459 N.Y.S.2d 1038, 445 N.E.2d 226 [1982] ). This determination renders the excludability of the remaining challenged period academic. In any event, the other challenged period was properly excluded due to the unavailability of a principal prosecution witness for medical reasons (CPL 30.30[4][g]; People v. Alcequier, 15 A.D.3d 162, 163, 788 N.Y.S.2d 389 [2005], lv. denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324 [2005] ).
We perceive no basis for reducing the sentence.
MAZZARELLI, J.P., MOSKOWITZ, ACOSTA, RENWICK, DeGRASSE, JJ., concur.