Opinion
KA 01-01271
June 13, 2003.
Appeal from a judgment of Supreme Court, Erie County (Pietruszka, J.), entered April 30, 2001, convicting defendant after a nonjury trial of, inter alia, criminal sale of a controlled substance in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Contrary to the contention of defendant, Supreme Court did not abuse its discretion in denying his motion to dismiss the indictment in furtherance of justice pursuant to CPL 210.40(1) based on his medical condition. "[T]erminal illness, even in cases where the diagnosis [is] far more certain and far more dire than the speculative prognosis here, will [not] per se permit a defendant to evade the consequences of his criminal behavior" ( People v. Baghai-Kermani, 221 A.D.2d 219, 221; see People v. McAlister, 280 A.D.2d 556, lv denied 96 N.Y.2d 803).