PEOPLE v. FREEMAN (2007)

 Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20).   We reject the contention of defendant that he was sentenced as a persistent felony offender in violation of the ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and its progeny (see People v. West, 12 A.D.3d 152, 783 N.Y.S.2d 473, affd. 5 N.Y.3d 740, 800 N.Y.S.2d 369, 833 N.E.2d 704,cert. denied 546 U.S. 987, 126 S.Ct. 573, 163 L.Ed.2d 479;  People v. Rivera, 5 N.Y.3d 61, 66-68, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473;  People v. Nelson, 16 A.D.3d 1172, 791 N.Y.S.2d 236, lv. denied 5 N.Y.3d 766, 801 N.Y.S.2d 260, 834 N.E.2d 1270, cert. denied 546 U.S. 1043, 126 S.Ct. 758, 163 L.Ed.2d 590).   Supreme Court properly denied that part of defendant's omnibus motion seeking dismissal of the indictment pursuant to CPL 30.30.  “[A] statement of readiness made contemporaneously with the filing of the indictment can be effective to stop the ‘speedy trial’ clock if the indictment is filed at least two days before the CPL 30.30 period ends” (People v. Carter, 91 N.Y.2d 795, 798, 676 N.Y.S.2d 523, 699 N.E.2d 35).   Here, the indictment was so filed, and the prosecutor thereafter promptly notified defense counsel of the statement of readiness (see People v. Smith, 1 A.D.3d 955, 956, 767 N.Y.S.2d 714, lv. denied 1 N.Y.3d 634, 777 N.Y.S.2d 32, 808 N.E.2d 1291;  see generally People v. Kendzia, 64 N.Y.2d 331, 337 n., 486 N.Y.S.2d 888, 476 N.E.2d 287;  People v. Anderson, 252 A.D.2d 399, 676 N.Y.S.2d 549, lv. denied 92 N.Y.2d 1027, 684 N.Y.S.2d 492, 707 N.E.2d 447).   The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction (see People v. Salvatore, 178 A.D.2d 566, 567, 577 N.Y.S.2d 652;  see also People v. Reeves, 195 A.D.2d 950, 600 N.Y.S.2d 587;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The verdict is not 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).   Because the conviction is supported by legally sufficient evidence at trial, the contention of defendant in his pro se supplemental brief that the court erred in denying that part of his omnibus motion seeking dismissal of the indictment based upon the alleged insufficiency of the evidence before the grand jury is not reviewable on appeal (see CPL 210.30[6];  People v. Smith, 4 N.Y.3d 806, 808, 796 N.Y.S.2d 1, 828 N.E.2d 958;  People v. Trammell, 19 A.D.3d 1157, 1158, 795 N.Y.S.2d 919).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: