Opinion
2015-03-27
The PEOPLE of the State of New York, Respondent, v. Ira McCULLARS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine Cook of Counsel), For Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine Cook of Counsel), For Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the first degree (Penal Law § 140.30[4] ) and conspiracy in the fourth degree (§ 105.10[1] ), arising from his participation in a home invasion on July 14, 2010, with three other people. Contrary to defendant's contention, his statutory right to a speedy trial was not violated. The record establishes that on July 15, 2010, a felony complaint was filed against defendant, charging him with burglary in the first degree, robbery in the first degree, and criminal use of a firearm in the first degree. On July 22, 2010, defense counsel “waived the case out of Solvay [Village Court]” and, in September 2010, the People filed an indictment against the three other alleged participants, but the People refused to dismiss the felony complaint against defendant. On January 12, 2011, three days before the expiration of the six-month statutory period for the People to comply with their obligation to be ready for trial ( seeCPL 30.30[a][1] ), the People filed a superseding indictment that charged defendant and the three other alleged participants. At that time, the People announced their readiness for trial on the record and sent defense counsel a Kendzia letter ( see People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287). On February 4, 2011, the court granted defendant's motion to dismiss the January indictment as having been obtained in violation of his right to testify before the grand jury ( seeCPL 190.50[5] ). Later that day, the People filed a superseding indictment against defendant and announced their readiness for trial prior to entry of the order dismissing the January indictment. We conclude that the People's announcement of readiness on January 12, 2011, i.e., within six months of the commencement of the criminal action against defendant ( seeCPL 30.30 [1][a] ), “satisfie[d] their obligation to answer ready on the subsequent indictment” (People v. Marsh, 127 A.D.2d 945, 947, 512 N.Y.S.2d 545, lv. denied70 N.Y.2d 650, 518 N.Y.S.2d 1043, 512 N.E.2d 569; see People v. Stone, 265 A.D.2d 891, 892, 697 N.Y.S.2d 212, lv. denied94 N.Y.2d 907, 707 N.Y.S.2d 392, 728 N.E.2d 991; People v. Jones, 185 A.D.2d 655, 656, 587 N.Y.S.2d 57, lv. denied81 N.Y.2d 888, 597 N.Y.S.2d 949, 613 N.E.2d 981; see generally People v. Farkas, 16 N.Y.3d 190, 193, 919 N.Y.S.2d 488, 944 N.E.2d 1127). Contrary to defendant's contention, the People's announcement of readiness for trial on January 12, 2011 was not a “sham” ( see generally Kendzia, 64 N.Y.2d at 337, 486 N.Y.S.2d 888, 476 N.E.2d 287). We reject defendant's further contention that the People are chargeable with postreadiness delay for their alleged failure to provide discovery and a bill of particulars. “ ‘Defendant's remedies for such delays do not include dismissal under CPL 30.30’ ” (People v. Griffin, 111 A.D.3d 1355, 1356, 974 N.Y.S.2d 730, lv. denied22 N.Y.3d 1139, 983 N.Y.S.2d 497, 6 N.E.3d 616). We reject defendant's further contention that the People are chargeable with delay for the adjournment of an independent source hearing. The People were entitled to a reasonable time to prepare for the hearing after defense counsel provided them with a recorded interview of the People's witness who was to testify at that hearing, and the time permitted for the adjournment of that hearing was excludable ( seeCPL 30.30[4][a], [g]; People v. Moolenaar, 262 A.D.2d 60, 60, 694 N.Y.S.2d 348, lv. denied94 N.Y.2d 826, 702 N.Y.S.2d 597, 724 N.E.2d 389).
Contrary to defendant's contention, the evidence viewed in the light most favorable to the People is legally sufficient to support the conviction ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's further contention that the verdict is against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Indeed, based upon our independent review of the evidence, we conclude that a different verdict would have been unreasonable ( see People v. Peters, 90 A.D.3d 1507, 1508, 934 N.Y.S.2d 734, lv. denied18 N.Y.3d 996, 945 N.Y.S.2d 651, 968 N.E.2d 1007; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The sentence is not unduly harsh or severe.
We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.