Opinion
240 A.D.2d 165 658 N.Y.S.2d 273 The PEOPLE of the State of New York, Respondent, v. Jose REYES, Defendant-Appellant. Supreme Court of New York, First Department June 3, 1997.
Peter Hinckley, for respondent.
Michael Pinard, for defendant-appellant.
Before ELLERIN, J.P., and NARDELLI, RUBIN and WILLIAMS, JJ.
MEMORANDUM DECISION.
Judgment, Supreme Court, New York County (Herbert Adlerberg and Harold Beeler, JJ., on speedy trial motions; Daniel FitzGerald, J., at jury trial and sentence), rendered September 15, 1994, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 7 to 14 years, unanimously affirmed.
Defendant's speedy trial motions were properly denied. We agree with the Supreme Court that the 13 day period from May 19, 1993 to June 1, 1993 was includable based on the People's failure to provide the minutes of the Grand Jury proceeding within the extensive time period provided by the court (see, People v. Harris, 82 N.Y.2d 409, 604 N.Y.S.2d 918, 624 N.E.2d 1013; People v. McKenna, 76 N.Y.2d 59, 556 N.Y.S.2d 514, 555 N.E.2d 911). The People were also properly charged with the periods representing adjournments specifically requested by them and excluded the additional adjournment periods requested by defendant after the People announced their readiness for trial (People v. Johnson, 232 A.D.2d 173, 648 N.Y.S.2d 72, lv denied 89 N.Y.2d 924, 654 N.Y.S.2d 726, 677 N.E.2d 298; People v. Cajigas, 224 A.D.2d 370, 638 N.Y.S.2d 458, lv denied 88 N.Y.2d 845, 644 N.Y.S.2d 691, 667 N.E.2d 341). Although defendant contends that the People's certificate of readiness was illusory and that the adjournments in question should be considered pre-readiness, rather than post-readiness, adjournments, since he failed to raise this contention before the Supreme Court, the issue has not been preserved for appellate review (CPL 470.05[2]; People v. Goode, 87 N.Y.2d 1045, 643 N.Y.S.2d 477, 666 N.E.2d 182), and we decline to review it in the interest of justice. Were we to review it, we would find no merit to defendant's contention that the certificate of readiness was illusory. Moreover, the prosecutor's sworn affirmation submitted in opposition to defendant's speedy trial motion, which was not challenged by defendant, sufficiently established the reason for the additional one day adjournment to August 10th (see, People v. DeLaRosa, 236 A.D.2d 280, 654 N.Y.S.2d 349). Since defendant failed to challenge the prosecutor's assertion that it was defendant who requested the adjournment to October 14th for the reassignment of defense counsel, defendant's current challenge to the court's finding that this time was excludable has not been preserved for appellate review (CPL 470.05[2]; People v. Goode, supra ), and we decline to review it in the interest of justice. In any event, the period was properly excluded (see, People ex rel. Mayfield v. McGrane, 234 A.D.2d 88, 650 N.Y.S.2d 684). Since the People are entitled to a reasonable period to respond to defense motions (People v. Brown, 227 A.D.2d 237, 642 N.Y.S.2d 281; People v. Inswood, 180 A.D.2d 649, 580 N.Y.S.2d 39, lv denied 79 N.Y.2d 1002, 584 N.Y.S.2d 457, 594 N.E.2d 951) and since one of the postreadiness adjournments was at the court's direction for the purpose of conducting a pretrial conference (People v. Ali, 195 A.D.2d 368, 369, 600 N.Y.S.2d 55, lv denied 82 N.Y.2d 804, 604 N.Y.S.2d 940, 624 N.E.2d 1035), these disputed time periods were also properly excluded.
The trial court properly exercised its discretion in rendering a Sandoval ruling permitting limited inquiry into only two of defendant's numerous prior convictions, despite the similarity of those crimes to the one with which defendant was charged in the instant case, since those crimes demonstrated his willingness to put his own interests above those of society (People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216).
Since defense counsel did not object to the court's opening remarks, defendant's current contention that these remarks deprived him of a fair trial has not been preserved for appellate review as a matter of law (CPL 470.05[2] ), and we decline to review it in the interest of justice. In any event, viewing the court's instructions as a whole (People v. Coleman, 70 N.Y.2d 817, 523 N.Y.S.2d 433, 517 N.E.2d 1319), they conveyed the proper principles of law and did not have the effect of improperly shifting the burden of proof (People v. Concepcion, 228 A.D.2d 204, 644 N.Y.S.2d 498, appeal withdrawn 88 N.Y.2d 982, 649 N.Y.S.2d 389, 672 N.E.2d 615).