PEOPLE v. BRUNNER (2009)

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered May 9, 2006, as amended June 2, 2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and resisting arrest, and sentencing him, as a second felony offender, to an aggregate term of 4 1/2 years, unanimously affirmed.

 Defendant received effective assistance of counsel under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).   Regardless of whether counsel should have made a speedy trial motion, defendant was not prejudiced by the lack of such a motion.   Upon our review of the periods of delay at issue, we conclude that there was not enough includable time to require dismissal of the indictment.

 The court properly denied defendant's request for missing witness charges as to several officers, since none of them would have provided material, non-cumulative testimony (see generally People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ).   A supervising officer was not present during the drug sale, and his testimony about events that came after the sale would have been cumulative to that of an officer who testified (see e.g. People v. Epps, 8 A.D.3d 85, 777 N.Y.S.2d 909 [2004], lv. denied 3 N.Y.3d 673, 784 N.Y.S.2d 12, 817 N.E.2d 830 [2004] ).   The record fails to support defendant's assertion that two other uncalled officers may have been in a position to observe the sale (see People v. Tavarez, 288 A.D.2d 120, 733 N.Y.S.2d 342 [2001], lv. denied 97 N.Y.2d 709, 739 N.Y.S.2d 110, 765 N.E.2d 313 [2002] ).

The court's Sandoval ruling, permitting only limited use of defendant's prior record, 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 [2002];  People v. Walker, 83 N.Y.2d 455, 458-459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] ).