PEOPLE v. CAPELLAN

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Yohady CAPELLAN, Defendant-Appellant.

Decided: March 22, 2007

FRIEDMAN, J.P., NARDELLI, SWEENY, McGUIRE, MALONE, JJ. Laura R. Johnson, The Legal Aid Society, New York (Lawrence T. Hausman of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 3, 2001, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and unlawful use of police uniform or emblem in violation of Administrative Code of City of New York § 14-107, and sentencing him to an aggregate term of 1 year, unanimously affirmed.

 The court properly denied defendant's speedy trial motion.   Since the original misdemeanor complaint filed against defendant was superseded by a felony indictment, the People were required to be ready for trial within six months (see People v. Cooper, 90 N.Y.2d 292, 660 N.Y.S.2d 546, 683 N.E.2d 11 [1997] ), or in this case 184 days.   There is nothing in Cooper to suggest that the timing or circumstances of the People's decision to elevate a misdemeanor charge to a felony has any impact on the time limit.   The record reveals that the People were chargeable with 85 days, well within the statutory limit.   Defense counsel expressly consented to or requested the adjournments of June 4, July 9, and August 16, 1999.   The clear excludability under CPL 30.30(4)(b) of the periods of delay following those adjournments is dispositive of the statutory speedy trial issue, and we need not reach any other contentions.   In any event, we find defendant's remaining arguments concerning those adjournments, as well as other adjournments, to be unavailing.

Defendant's constitutional speedy trial claim is unpreserved (see People v. Jordan, 62 N.Y.2d 825, 477 N.Y.S.2d 605, 466 N.E.2d 145 [1994];  People v. Mack, 306 A.D.2d 115, 759 N.Y.S.2d 878 [2003], lv. denied 100 N.Y.2d 622, 767 N.Y.S.2d 405, 799 N.E.2d 628 [2003] ), and we decline to review it in the interest of justice.   Were we to review it, we would reject it (see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ).

 The court properly denied defendant's suppression motion.   Although the officer who performed the actual search of defendant's bag did not testify, the testimony of her partner, who was present throughout the incident, fully satisfied the People's burden at the hearing.   The police action in searching defendant's bag in an effort to ascertain his identity was reasonable under the circumstances (see generally People v. Wheeler, 2 N.Y.3d 370, 374, 779 N.Y.S.2d 164, 811 N.E.2d 531 [2004] ) where defendant, who had suffered a head injury and did not respond to police queries, was about to be transported to a hospital. The search was also proper as incident to a lawful arrest since a weapon had just been recovered from defendant's person and the bag remained in his grabbable area, and not in the exclusive control of the police (see People v. Smith, 59 N.Y.2d 454, 465 N.Y.S.2d 896, 452 N.E.2d 1224 [1983];  People v. Wylie, 244 A.D.2d 247, 666 N.Y.S.2d 1 [1997], lv. denied 91 N.Y.2d 946, 671 N.Y.S.2d 726, 694 N.E.2d 895 [1998];  compare People v. Gokey, 60 N.Y.2d 309, 469 N.Y.S.2d 618, 457 N.E.2d 723 [1983] ).   The record supports the court's finding that, at the time of the search, defendant was still physically capable of reaching for the bag.