PEOPLE v. FERGUSON

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Adrian FERGUSON, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  GREEN, J.P., HURLBUTT, SCUDDER, GORSKI, AND LAWTON, JJ. Donald M. Thompson, Rochester, for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of kidnapping in the second degree (Penal Law § 135.20), reckless endangerment in the first degree (§ 120.25), attempted robbery in the first degree (§§ 110.00, 160.15[2] ), criminal possession of a weapon in the second degree (§ 265.03) and criminal use of a firearm in the first degree (§ 265.09 [1] ).   Supreme Court properly denied that part of defendant's motion seeking to dismiss the indictment pursuant to CPL 30.30(1)(a) and 210.20(1)(g).  The People timely announced their readiness for trial within six months of the commencement of the criminal action (see CPL 30.30[1][a] ), and they are not chargeable with the period of postreadiness delay resulting from the failure of defendant to appear and his subsequent absence from the jurisdiction (see People v. Carter, 91 N.Y.2d 795, 798-799, 676 N.Y.S.2d 523, 699 N.E.2d 35;  People v. Roberts, 176 A.D.2d 1200, 1201, 576 N.Y.S.2d 698, lv. denied 79 N.Y.2d 831, 580 N.Y.S.2d 211, 588 N.E.2d 109).   We reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant failed to preserve for our review his further contention that the third through sixth counts of the indictment are duplicitous (see CPL 470.05[2];  People v. Spagnualo, 5 A.D.3d 995, 997, 774 N.Y.S.2d 223, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478;  People v. Bryan, 270 A.D.2d 875, 705 N.Y.S.2d 924, lv. denied 95 N.Y.2d 904, 716 N.Y.S.2d 645, 739 N.E.2d 1150), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   The contention of defendant that he was denied his right to effective assistance of counsel is based upon matters outside the trial record and thus must be raised by way of a motion pursuant to CPL 440.10 (see People v. Walton, 14 A.D.3d 419, 420, 788 N.Y.S.2d 107).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: