PEOPLE v. LOPEZ (2003)

Judgment, Supreme Court, New York County (Richard Carruthers, J. at suppression hearing;  John Stackhouse, J. at speedy trial motion, jury trial and sentence), rendered March 20, 2000, convicting defendant of criminal sale of a controlled substance in the third degree and criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously affirmed.

 The court properly denied defendant's speedy trial motion.   After a thorough hearing, the court properly determined that the period of 155 days during which the purchasing undercover officer was unavailable due to a family crisis and its tragic conclusion was excludable pursuant to CPL 30.30(4)(g) as a delay “occasioned by exceptional circumstances.”   The evidence established that the People could not have made the officer available at an earlier date (see People v. Pressley, 115 A.D.2d 228, 496 N.Y.S.2d 147).   We have considered and rejected defendant's remaining speedy trial arguments.

 Defendant's motion to suppress identification evidence was properly denied.   There was a proper confirmatory identification by the undercover officer immediately after the drug transaction (see People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462).

Since defendant's ineffective assistance of counsel claim rests primarily on matters outside the record, it would require a CPL 440.10 motion (People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486).   To the extent that the existing record permits review, it establishes that defendant received effective assistance (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963).

We perceive no basis for reducing the sentence.