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

The PEOPLE of the State of New York, Respondent, v. Shelton FORBES, Defendant-Appellant.

Decided: May 27, 2004

NARDELLI, J.P., LERNER, FRIEDMAN, MARLOW, GONZALEZ, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Dana Poole of counsel), for respondent.

Judgments, Supreme Court, New York County (Renee A. White, J. on speedy trial motions;  Lewis Bart Stone, J. at jury trial and sentence), rendered July 20, 2001, convicting defendant of criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance in or near school grounds and criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender, to an aggregate term of 5 to 10 years, unanimously affirmed.

 The court properly denied defendant's speedy trial motions.   Defendant's challenges to the two periods at issue have not been preserved for appellate review since defendant failed to raise these claims before the motion court (People v. Goode, 87 N.Y.2d 1045, 643 N.Y.S.2d 477, 666 N.E.2d 182), and we decline to review them in the interest of justice.   Were we to review these challenges, we would find that the time between April 25 and May 16, 2000 was excludable because on April 25 the court decided defendant's omnibus motion and the People were entitled to a reasonable time to prepare for hearings and trial (see People v. Green, 90 A.D.2d 705, 455 N.Y.S.2d 368, lv. denied 58 N.Y.2d 784, 459 N.Y.S.2d 1038, 445 N.E.2d 226), constituting “a reasonable period of delay resulting from ․ pre-trial motions” within the meaning of CPL 30.30(4)(a).   The period between July 13 and August 1, 2000 was also excludable since the adjournment request was initiated by defendant (see People v. Jenkins, 286 A.D.2d 634, 730 N.Y.S.2d 428, lv. denied 97 N.Y.2d 683, 738 N.Y.S.2d 299, 764 N.E.2d 403).

 The court's instructions about the administrative duties of the jury foreperson, and its response to a note from the deliberating jury on this subject, were appropriate.   Although the court made a reference to the foreperson “chairing” the discussions, it stated that it was up to the jury as a whole to decide what such “chairing” would constitute, and that the foreperson's opinion and vote were entitled to the same weight as that of any other juror (see People v. Benito, 287 A.D.2d 387, 731 N.Y.S.2d 619, lv. denied 97 N.Y.2d 679, 738 N.Y.S.2d 293, 764 N.E.2d 397;  cf. People v. Rosa, 122 Misc.2d 905, 906, 471 N.Y.S.2d 793).   The court also stated that any juror could compose a note for submission to the court.

We decline to invoke our interest of justice jurisdiction to dismiss the non-inclusory concurrent count (see People v. Spence, 290 A.D.2d 223, 735 N.Y.S.2d 756, lv. denied 98 N.Y.2d 641, 744 N.Y.S.2d 770, 771 N.E.2d 843;  People v. Kulakov, 278 A.D.2d 519, 716 N.Y.S.2d 824, lv. denied 96 N.Y.2d 785, 725 N.Y.S.2d 649, 749 N.E.2d 218).