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

The PEOPLE of the State of New York, Respondent, v. Freddie GONZALEZ, Defendant-Appellant.

Decided: January 30, 1997

Before MILONAS, J.P., and ELLERIN, RUBIN and MAZZARELLI, JJ. Louise E. Weiss, for Respondent. Peter J. Fabricant, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Patricia Williams, J., on speedy trial motion;  John Bradley, J., at jury trial and sentence), rendered July 24, 1995, convicting defendant of criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 8 years to life, 4 to 12 years and 2 to 6 years, respectively, unanimously affirmed.

While defendant was a Federal prisoner in Rhode Island, the People were diligent and made reasonable efforts to obtain his presence for trial in New York (CPL 30.30[4][e] ).  Although the People made repeated requests for defendant's production, they were unequivocally advised by the Federal prosecutor that defendant would not be released prior to his Federal trial.   Thereafter, for the next six months, the People called the Federal prosecutor frequently for updates on the status of defendant's Federal case.   Under these circumstances, it was not necessary for the People to make the obviously futile gesture of obtaining a writ of habeas corpus ad prosequendum pursuant to CPL 580.30(2), which would not have been binding upon the Department of Justice (People v. Nicholson, 228 A.D.2d 154, 155-156, 644 N.Y.S.2d 496, 497-498).

We decline to review, in the interest of justice, defendant's unpreserved argument made pursuant to People v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235, 626 N.E.2d 51.