Opinion
09-28-2017
The PEOPLE of the State of New York, Respondent, v. Johansel Marte–TEJADA, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Willkie Farr & Gallagher LLP, New York (Debra McElligott of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Willkie Farr & Gallagher LLP, New York (Debra McElligott of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.
Judgment, Supreme Court, Supreme Court, New York County (Lewis Bart Stone, J. at speedy trial motions and jury trial; Jill Konviser, J. at sentencing), rendered October 15, 2013, as amended, January 30, 2014, convicting defendant of assault in the second degree and attempted assault in the second degree, and sentencing him to an aggregate term of six years, unanimously affirmed.
The court properly denied defendant's speedy trial motions. Except as to a five-day period where the People concede includability on appeal, the record supports the court's findings of excludability, including a finding in which it providently disregarded the People's erroneous concession (see e. g. People v. Wells, 16 A.D.3d 174, 791 N.Y.S.2d 34 [1st Dept.2005], lv. denied 5 N.Y.3d 796, 801 N.Y.S.2d 817, 835 N.E.2d 677 [2005] ).
Each of the periods of delay contested by defendant on appeal was the result of motions or other proceedings (see CPL 30.30[4][a] ), or were attributable to defendant (30.30[4][b] ) or a codefendant (30.30[4][d] ). We decline to reach the People's argument that the court should have excluded an additional period.
With regard to the attempted assault charge the court correctly declined to charge justification, or to submit attempted third-degree assault as a lesser included offense. There was no reasonable view of the evidence, considered in the light most favorable to defendant (see generally People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188 [1982] ; People v. Scarborough, 49 N.Y.2d 364, 371–374, 426 N.Y.S.2d 224, 402 N.E.2d 1127 [1980] ), that at the time defendant broke a glass bottle over the victim's head, the victim reasonably appeared to pose any threat to defendant, either personally or by aiding other persons, or that the bottle, as used, did not constitute a dangerous instrument.
The court properly replaced a sworn juror for medical reasons. Defendant's challenge to the discharge is similar to an argument raised on a codefendant's appeal ( People v. Meran, 143 A.D.3d 423, 38 N.Y.S.3d 189 [1st Dept.2016], lv. denied 28 N.Y.3d 1074, 47 N.Y.S.3d 232, 69 N.E.3d 1028 [2016] ), where, in an alternative holding, we found that argument unavailing, and we see no reason to reach a different conclusion here.
We perceive no basis for reducing the sentence.
TOM, J.P., MAZZARELLI, ANDRIAS, OING, SINGH, JJ., concur.