Opinion
February 10, 2000
Judgment, Supreme Court, New York County (Felice Shea, J., on speedy trial motions; William Leibovitz, J., at jury trial and sentence), rendered June 19, 1998, convicting defendant of criminal possession of a controlled substance in the third degree and bail jumping in the first degree, and sentencing him, as a second felony offender, to concurrent terms of 4 1/2 to 9 years and 3 1/2 to 7 years, respectively, unanimously affirmed.
Karen Heiss Eisen for the Respondent.
Dominic J. Sichenzia for the Defendant-Appellant.
ROSENBERGER, J.P., ELLERIN, WALLACH, SAXE, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There was ample evidence of possession of drugs with intent to sell, including the quantity of drugs (see, People v. Alvino, 71 N.Y.2d 233, 245), the manner in which the drugs were packaged, and the circumstances under which they were recovered.
Defendant's speedy trial motion was properly denied. Pursuant toCPL 30.30(5)(a), periods of delay that occurred prior to this Court's reversal of defendant's original judgment of conviction ( 245 A.D.2d 161, lv denied 91 N.Y.2d 946) are not part of the speedy trial computations. Contrary to defendant's argument, we conclude that this statutory rule applies without regard to the reason for the reversal of the first conviction. In any event, even if we were to consider delay occurring prior to the original conviction, we would still find no speedy trial violation.
The sentence imposed did not penalize defendant for invoking his right to appeal his original conviction. There is no constitutional violation involved where a heavier sentence is imposed following trial than was imposed after an earlier conviction, thereafter reversed, based upon a guilty plea (People v. Miller, 65 N.Y.2d 502, cert denied 474 U.S. 951). Moreover, defendant's trial conviction included a higher category of felony than his plea conviction, and he received the minimum sentence authorized by law for the greater offense.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.