PEOPLE v. ALVARADO

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

The PEOPLE of the State of New York, Respondent, v. Blass ALVARADO, Defendant-Appellant.

Decided: March 22, 2001

ANDRIAS, J.P., ELLERIN, RUBIN, SAXE and FRIEDMAN, JJ. Eleanor J. Ostrow, for Respondent. Michael J. Mannheimer, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered January 15, 1999, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

Defendant's speedy trial motion was properly denied.   The issue turns on the court's exclusion of a 27-day post-readiness adjournment beginning on June 25, 1998.   The minutes of that adjournment reveal defense counsel's immediate announcement that he had just been assigned, followed by an unrecorded bench conference, followed by the court's inquiry of defense counsel whether July 22 was an acceptable date and defense counsel's agreement.   It is undisputed that defense counsel was appointed to replace defendant's former counsel no more than three days prior to June 25.   The record is sufficiently clear as to the reason for the adjournment.   The motion court correctly determined that “absent any specific factual allegations to the contrary, the implication from the circumstances is that the adjournment was granted at the request of defense counsel.”   Significantly, in his moving papers and subsequent proceedings on the speedy trial motion, defendant did not deny the prosecutor's explanation for the adjournment at issue or otherwise challenge it (see, People v. Notholt, 242 A.D.2d 251, 252, 662 N.Y.S.2d 297).