People v. Abundis (Johnny)

People v Abundis (2021 NY Slip Op 50065(U)) [*1] People v Abundis (Johnny) 2021 NY Slip Op 50065(U) [70 Misc 3d 136(A)] Decided on January 29, 2021 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on January 29, 2021 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Edmead, P.J., Higgitt, McShan, JJ. 570912/14 The People of the State of New York, Respondent, against Johnny Abundis, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Erika M. Edwards, J. at first speedy trial motion; Ann E. Scherzer, J., at second speedy trial motion; Gilbert C. Hong, J., at trial and sentencing), rendered September 19, 2014, after a jury trial, convicting him of forcible touching and sexual abuse in the third degree, and imposing sentence. Per Curiam. Judgment of conviction (Erika M. Edwards, J. at first speedy trial motion; Ann E. Scherzer, J. at second speedy trial motion; Gilbert C. Hong, J., at trial and sentencing), rendered September 19, 2014 affirmed. The verdict convicting defendant of forcible touching (see Penal Law § 130.52[2]) and sexual abuse in the third degree (see Penal Law § 130.55) was not against the weight of the evidence (see People Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis to disturb the jury's credibility determinations, in which it credited the testimony of the victim and two police officers who witnessed the incident, and found defendant not to be credible (see People v Ramos, 166 AD3d 442 [2018], lv denied 32 NY3d 1177 [2019]). Defendant's speedy trial motions were properly denied. The period from January 29, 2014 to February 21, 2014 was excludable since defendant was in the custody of ICE, and the People demonstrated that they were diligent and made reasonable efforts to secure defendant's presence (see CPL § 30.30[4][e]; People v Pierce, 38 AD3d 262 [2007], lv denied 8 NY3d 989 [2007]; People v Cain, 291 AD2d 326, 327 [2002], lv denied 98 NY2d 673 [2002]; People v Smith, 138 AD2d 972 [1988], affd 73 NY2d 961 [1989]). With regard to the second period in dispute, the record shows that the People answered ready on July 22, 2014, but the case had to be adjourned because no trial parts were available. Although the People initially indicated that they would be available on July 28, they corrected that statement later in the day to indicate that the soonest their witnesses would be ready was on August 11th, and the court adjourned the matter to that date. In the circumstances, having explained their reasonable request for a certain number of days, the delay from July 28, 2014 to August 11, 2014 was properly attributed to delays of the court calendar and thus was also excludable (see People v Goss, 87 NY2d 792, 797 [1996]). All concur THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Clerk of the Court Decision Date: January 29, 2021