People v. WaltonPeople v. Walton
Aрpeals (1) from a judgment of the County Court of Schenectady County (Harrigan, J.), rendered February 26, 1991, upon a verdict convicting defendant of the crime of burglary in the third degree, and (2) from an order оf said court, entered March 2, 1992, which denied defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction.
Defendant was arrested when he was found on the premises of a storе owned by Strong Stone in the early morning hours of May 4, 1989. Police Officers Jeffrey Jackson and Willard Stearns, responding to a tenant’s complaint of noise in the store, noticed no lights on in the store when they arrived. In approaching the front door, the officers noticed that the door was open approximately two inches and was propped open by a doormat. Defendant was found silently standing inside about six feet from where Jackson was standing, holding a flashlight in one hand. Stearns conducted a pat-down search of defendant and discovered a key to the store in defendant’s pocket. Through investigation it was determined that Marilyn Petersen had been given a key to Stone’s store to watch it when he was away. This key was later determined to be the key found in defendant’s pocket. It was further determined that Petersen, defendant and another individual had been out drinking together the night before and that Petersen became highly intoxicаted. Testimony revealed that Petersen had earlier told defendant about her arrangement with Stone and had showed him the key to the store. Defendant was brought to the police
Defendant first contends that County Court incorrectly determined that the People were ready for trial within six months of the commencement of the action as required by CPL 30.30 (1) (a). We disagree. It is clear that the People must declare their readiness for trial within six months of the commencement of a criminal action where, as here, defendant is accused of a felony (see, CPL 30.30 [1] [a]). In computing thе time of readiness, certain time periods are permissibly excluded (see, CPL 30.30 [4]). In the instant case, it is uncontested that a plea offer was proffered to defendant on October 30, 1989 and that dеfense counsel agreed, for purposes of CPL 30.30, that a one-week extension would be granted for defendant to consider the plea. We find that the People have affirmativеly established that defense counsel waived the running of CPL 30.30 for one week and that, in accordance with such agreement, the indictment was not filed until November 6, 1989. Hence, such time was not prоperly chargeable to the People (see, People v Merrick,
We find that the delay of four days from November 11 to November 15, 1989 was occasioned by defense counsel’s rеquest for an adjournment and defendant’s failure to appear. Therefore, we find such time to be properly excludible from speedy trial calculations (see, People v Hughes,
We find no merit to defendant’s contention that the evidence adduced at trial was legally insufficient to establish that
We further find the evidence sufficient to support the conclusion that defendant intended to commit a crime once inside the store. Defendant was found in the store while the store was closed. When he entered, he did not turn on the lights and instead propped open the door and used a flashlight to see inside. Moreover, while defendant testified that he was inside the store to pick up shoes made for an individual named "Indian John”, Stone testified that he never made any shoes fоr such person. Moreover, contrary to defendant’s contention, Petersen testified that she never gave the key to defendant. Hence, the jury, considering the facts proved and the inferences that could be reasonably drawn therefrom, made credibility determinations with respect to conflicting testimony which we find to be reasonable. It further appropriately inferred, based upon the proof before it, that defendant entered the store with knowledge that he had no license to do so and that he intended to commit a crime therein.
As to defendant’s claims of ineffective assistance of counsel, we find no merit. In reviewing claims of ineffective assistance, "[o]ur most critical concern * * * is to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis” (People v Baldi,
We further find defendant’s contention that his counsel’s failure to object to the admission of testimony proffered on redirect examination of the arresting officer, when such statement had not been the subject of a CPL 710.30 notice, is unavailing. We find that such statement was used solely for rebuttal purposes and that the admission thereof wаs not error (see, People v Robinson,
Additionally, we reject defendant’s contention that County Court erred when it denied his motion made pursuant to CPL article 440 to vacate the judgment of conviction without a hearing. Pursuant to CPL 440.30 (4) (d), a court may deny the motion without a hearing if "[a]n allegation of fact essential to support the motion (i) * * * is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these * * * circumstances * * * there is no reasonable possibility that [the] allegation is true”. Alleging that statements made by the prosecutor to the press constituted prоsecutorial misconduct and that he was the victim of selective prosecution, we note that on a claim of prosecutorial misconduct defendant must show that he used due diligence in adducing facts evidencing prosecutorial misconduct prior to sentencing and that he has alleged sufficient facts to show that he was prejudiced (see, People v Friedgood,
Our review of the record reveals that defendant failed to
As to all further contentions raised, we find them to be without merit.
Mikoll, J. P., White, Casey and Spain, JJ., concur. Ordered that the judgment and order are affirmed.