Summary
applying Torres, held that People not required to use due diligence to locate defendant where, inter alia, defendant failed to appear and used different names
Summary of this case from Stewart v. PeopleOpinion
Submitted February 25, 2000.
April 3, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered February 18, 1998, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree, upon a jury verdict, and imposing sentence.
Dale A. Black-Pennington, Forest Hills, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Craig Stephen Brown of counsel), for respondent.
WILLIAM C. THOMPSON, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the court properly denied his motion to dismiss the indictment on the ground that the People violated the six-month trial readiness requirement set forth inCPL 30.30(1)(a). The People should not be charged with that period of time in which the defendant was incarcerated under a different name in a different county within the State (see, People v. Mitchell, 106 A.D.2d 478 ). Moreover, the defendant's conduct, including his failure to appear for scheduled court dates and his use of different names, birthdays, social security numbers, and addresses, strongly suggest that he was attempting to avoid apprehension or prosecution (see, People v. Torres, 88 N.Y.2d 928 ;People v. Jackson, 150 A.D.2d 609 ). Under these circumstances, the People were not required to exercise due diligence to locate the defendant (see, CPL 30.30[4][c][i] [former(c)]; People v. Sigismundi, 89 N.Y.2d 587 ; People v. Cadilla, 245 A.D.2d 9 ).
The court providently exercised its discretion in denying the defendant's request, made on the first day of jury selection, for an independent drug test. The motion was untimely and the defendant did not offer an adequate explanation for his failure to seek to have the drugs tested, since they were available for inspection during pretrial discovery (see, CPL 255.20[1];People v. Molling, 238 A.D.2d 915 ; People v. James, 233 A.D.2d 903 ).