PEOPLE v. WELLS (2005)

Judgment, Supreme Court, New York County (Renee A. White, J. on speedy trial motion;  Edward J. McLaughlin, J. at jury trial and sentence), rendered July 9, 2001, convicting defendant of three counts of criminal sale of a controlled substance in the third degree, and sentencing him to concurrent terms of 4 1/212 to 9 years, unanimously affirmed.

The court properly denied defendant's speedy trial motion.   We find that only 173 days are properly includable.

 As the People concede on appeal, the court, which was under the misimpression that on April 13, 2000 a bench warrant had been issued and stayed, erred in excluding the period from April 13 to April 26.   However, the court properly excluded the period from April 26 to May 10, 2000 pursuant to CPL 30.30(4)(c) because a bench warrant was issued on April 26 and defendant failed to appear until May 10.   Defendant argues on appeal that the warrant should not have been issued, since he allegedly had not been notified that his adjourned date had been advanced.   However, since defendant never made this argument before the motion court, the People were not required to establish that defendant had been so notified (see People v. Osorio, 297 A.D.2d 231, 232, 746 N.Y.S.2d 256 [2002] ).   In any event, the relevant minutes indicate that defendant had been notified to appear in court on April 26.

 The court properly excluded the period from September 19 to October 24, 2000 as a reasonable delay resulting from pretrial motions (see CPL 30.30 [4] [a] ), because the People are entitled to a reasonable period of time to prepare for hearings after the court decides such motions (see e.g. People v. Ailes, 268 A.D.2d 370, 700 N.Y.S.2d 831 [2000], lv. denied 94 N.Y.2d 901, 707 N.Y.S.2d 385, 728 N.E.2d 984 [2000] ).   The court properly rejected the People's erroneous concession that this period was includable, and defendant was not deprived of the opportunity to litigate this issue (see People v. Strong, 276 A.D.2d 271, 713 N.Y.S.2d 872 [2000], lv. denied 96 N.Y.2d 807, 726 N.Y.S.2d 385, 750 N.E.2d 87 [2001];  compare People v. Chavis, 91 N.Y.2d 500, 506, 673 N.Y.S.2d 29, 695 N.E.2d 1110 [1998] ).   Moreover, in his motion papers, defendant effectively conceded the excludability of this period, and when the court disregarded the People's concession and found the period to be excludable, defendant made no further argument.

The record establishes that defendant received effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 [1995];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

Defendant's remaining contentions, each of which requires preservation (see People v. Yarmy, 271 A.D.2d 287, 706 N.Y.S.2d 635 [2000], lv. denied 95 N.Y.2d 940, 721 N.Y.S.2d 616, 744 N.E.2d 152 [2000] ), are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find no basis for reversal.