Summary
In People v Matthews (227 A.D.2d 313, 314 [1st Dept], lv denied 88 N.Y.2d 989), the eight-year-old victim was found to be "unavailable due to the emotional trauma caused by the kidnapping and repeated sodomy" and a two-month period of time was excluded as exceptional circumstances.
Summary of this case from People v. MackOpinion
May 28, 1996
Appeal from the Supreme Court, New York County (Howard Bell, J.).
The only issue before us is whether defendant was denied his right to a speedy trial (CPL 30.30). On October 29, 1991, the People requested a two-week adjournment, and defense counsel requested an adjournment to November 19, which the court granted. Clearly, defense counsel participated in setting the adjourned date and, accordingly, the court was justified in excluding the additional time requested by defense counsel to accommodate counsel's schedule ( compare, People v. Smith, 82 N.Y.2d 676, 678).
On December 19, 1991, the assigned prosecutor represented through another Assistant District Attorney that she needed a two-day adjournment, but defense counsel stated "I'd rather put it over, Judge, past the holidays." When the court inquired whether December 26 was satisfactory, defense counsel responded "I was thinking more like January 16 or the 23rd." It cannot be concluded that defense counsel did not participate in setting the January 16, 1992 adjourned date, or that the date was set either by the court or the prosecution ( compare, People v. Smith, supra). Defendant's argument that "the additional delay was set to accommodate defense counsel's schedule", does not require the entire period be charged to the People. As the Court of Appeals noted in People v. Smith ( supra), there was no justification for excluding the additional time required to accommodate defense counsel's schedule in that case because defense counsel did not participate in setting the adjourned dates, and the actual dates were set either by the court or the prosecution. That circumstance was not presented here.
With respect to the period March 3 to April 28, 1992, the People sufficiently established that the eight-year-old complaining witness was unavailable due to the emotional trauma caused by the kidnapping and repeated sodomy. Thus, the entire period was excludable as an "exceptional circumstance" under CPL 30.30 (4) (g). Moreover, defendant's failure to respond to the People's identification of the exclusion upon which they were relying resulted in the issue not being preserved for review ( see, People v. Luperon, 85 N.Y.2d 71, 78 ["the defense must identify any legal or factual impediments to the use of these exclusions"]). We have considered defendant's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Ellerin and Mazzarelli, JJ.