Opinion
November 5, 1990
Appeal from the Supreme Court, Kings County (Beldock, J.).
Ordered that the judgment is affirmed.
The defendant's motion to dismiss the indictment on speedy trial grounds was properly denied without a hearing, since it was clear from the court file and the parties' papers that a significant portion of the nearly two-year delay between the filing of the felony complaint and the commencement of the trial was excludable, and the defendant failed to establish that the unexcludable delay was in excess of the statutory period (see, People v. Lomax, 50 N.Y.2d 351; cf., People v. Santos, 68 N.Y.2d 859; People v. Berkowitz, 50 N.Y.2d 333; People v. Montes, 151 A.D.2d 700). We note that during the period in question, the defendant absconded twice, used two aliases, was incarcerated under one of the aliases, and was the subject of two separate bench warrants.
Although it was error for the court to use the phrase "reasonable certainty" in its charge on reasonable doubt (see, People v. La Rosa, 112 A.D.2d 954), this error is not preserved for appellate review. In any event, neither the single instance in which that phrase was used, nor the other claimed imperfections, diluted the effect of the charge, which repeatedly and accurately conveyed to the jury the concept of reasonable doubt (see, People v. Canty, 60 N.Y.2d 830; People v. Malloy, 55 N.Y.2d 296, cert. denied 459 U.S. 847; People v. Baucom, 154 A.D.2d 688).
We have examined the defendant's remaining contention and find it to be unpreserved for appellate review (see, CPL 470.05), and, in any event, without merit. Brown, J.P., Lawrence, Kunzeman and Kooper, JJ., concur.