People v. Eldridge

Mar 23, 2004
Versions:5 A.D.3d 282
774 N.Y.S.2d 683
2004 N.Y. App. Div. LEXIS 3264

Judgment, Supreme Court, New York County (Brenda Soloff, J., on speedy trial motion; John Stackhouse, J., at jury trial and sentence), rendered May 18, 2001, convicting defendant of criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 4 to 8 years, unanimously affirmed.

The court properly granted the People’s reverse-Batson application (Batson v Kentucky, 476 US 79 [1986]; People v Kern, 75 NY2d 638 [1990], cert denied 498 US 824 [1990]). The record supports the court’s finding of pretext. Such a finding, based primarily on the court’s assessment of counsel’s credibility, is entitled to great deference (see People v Hernandez, 75 NY2d 350 [1990], affd 500 US 352, 356-357 [1991]).

The court properly submitted to the jury the lesser offense of criminal possession of a controlled substance in the fourth degree, since there was a reasonable view of the evidence that defendant committed the lesser but not the greater crime (see People v Scarborough, 49 NY2d 364 [1980]). Under the circumstances of the case, the jury could have reasonably concluded that defendant only possessed the portion of the drugs that an officer observed in defendant’s physical possession.

The court properly denied defendant’s speedy trial motion. The record supports the court’s finding that the period during which defendant was incarcerated in Pennsylvania is excludable because the People exercised due diligence in securing his presence (CPL 30.30 [4] [e]). The People sufficiently established that the Pennsylvania authorities would not permit defendant to be extradited until at least January 2000, and that further efforts to extradite defendant would have been futile (see People v Gonzalez, 235 AD2d 366 [1997], lv denied 89 NY2d 1093 [1997]). *283We note that while the People made no showing of their efforts to secure defendant’s presence from January 1, 2000 to March 23, 2000, when he signed the waiver of extradition, that 82-day period is not dispositive. Concur—Tom, J.P., Andrias, Ellerin and Gonzalez, JJ.