People v. Benjamin

Mar 7, 2002
Versions:292 A.D.2d 191
739 N.Y.S.2d 667
2002 N.Y. App. Div. LEXIS 2300

Judgment, Supreme Court, New York County (William Wetzel, J.), rendered April 21, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fifth degrees, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, 6 to 12 years and 2 to 4 years, respectively, and judgment, same court (Felice Shea, J.), rendered October 24, 1997, convicting defendant, after a nonjury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a concurrent term of 6 to 12 years, unanimously affirmed.

Defendant’s speedy trial motion was properly denied. The 18-day period at issue was properly excluded from the time in which the People were required to be ready because defendant failed to appear and a bench warrant was issued and stayed against him (People v Notholt, 242 AD2d 251, 254; People v Cruz, 236 AD2d 322, 323, lv denied 89 NY2d 1090). Moreover, the adjournment was clearly on consent because defense counsel informed the court that he was actually engaged and effectively requested an adjournment of unspecified length, as well as actively participating in setting a mutually convenient adjourned date (see, People v Lassiter, 240 AD2d 293; People v Cambridge, 230 AD2d 649, 650).

The court’s verdict in the nonjury trial was not against the weight of the evidence. Issues of identification and credibility, including the weight to be given the inability of the police to recover drugs or buy money from defendant, were properly considered by the trier of facts and there is no basis upon which to disturb its determinations.

We perceive no basis for a reduction of sentence. Concur— Nardelli, J.P., Tom, Sullivan, Rubin and Friedman, JJ.