PEOPLE v. NORRIS

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

The PEOPLE, etc., Respondent, v. Kamau NORRIS, Appellant.

Decided: April 28, 1997

Before BRACKEN, J.P., and COPERTINO, SANTUCCI and McGINITY, JJ. Arza Rayches Feldman, Hauppauge, for appellant. Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Nicoletta J. Caferri, and Denis J. Clarke, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered July 26, 1995, convicting him of criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The court properly excluded the 48-day period from July 27, 1994, to September 13, 1994, from its calculation of the period within which the People were required to announce their readiness for trial.   This time period was occasioned by the determination of the defendant's omnibus motion, and therefore was excludable (see, CPL 30.30[4][a] ).  Accordingly, since the People were chargeable with only 142 days of delay, which is within the prescribed statutory period in this case, the court properly denied the defendant's motion to dismiss the indictment for lack of a speedy trial.

 The court should have instructed the jury with regard to the alibi defense, since defense counsel requested such an instruction, and the defendant's testimony that he was home at the time of the robbery was legally sufficient to raise that defense.   However, this error was harmless in light of the fact that the defendant was acquitted of all charges arising from the robbery with respect to which he interposed the alibi defense (see, People v. Lilley, 141 A.D.2d 849, 530 N.Y.S.2d 190).

The defendant's remaining contention is without merit.

MEMORANDUM BY THE COURT.

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