People v. Richards (Dwayne)

People v Richards (2022 NY Slip Op 50196(U)) [*1] People v Richards (Dwayne) 2022 NY Slip Op 50196(U) [74 Misc 3d 133(A)] Decided on March 15, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 15, 2022 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Edmead, P.J., Brigantti, Hagler, JJ. 570111/17 The People of the State of New York, Respondent, against Dwayne Richards, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Julio Rodriguez III, J. at speedy trial motion; Mary V. Rosado, J., at trial and sentencing), rendered January 25, 2017, after a nonjury trial, convicting him of harassment in the second degree, and imposing sentence. Per Curiam. Judgment of conviction (Julio Rodriguez III, J. at speedy trial motion; Mary V. Rosado, J. at trial and sentencing), rendered January 25, 2017, affirmed. The motion court properly denied defendant's CPL 30.30 speedy trial motion. The 21 day period at issue - April 20, 2015 to May 11, 2015 - was correctly excluded as "occasioned by exceptional circumstances" (CPL 30.30[4][g]; see People v Goodman, 41 NY2d 888, 889 [1977]). The record, including the supplemental papers requested by the Court, sufficiently establishes the unavailability of the complaining witness' attorney - retained by complainant in a pending criminal prosecution against her - because of the terminal illness and immediate death of counsel's daughter, which constituted an exceptional circumstance (see People v Harden, 6 AD3d 181 [2004], lv denied 3 NY3d 641 [2004]; People v Rodriguez, 212 AD2d 368 [1995], lv denied 85 NY2d 913 [1995]). As Criminal Court (Julio Rodriguez III, J.) recognized: "'no amount of diligence' on the[] part of the People would have alleviated the family emergency or made the complaining witness available under these circumstances ... Contrary to defendant's argument, [] the complaining witness' privately retained defense counsel was not fungible and could not have simply been replaced. Furthermore, in order for the complaining witness, who was a defendant in another prosecution, to make an informed decision on whether she should testify in the instant case without counsel present, she would need to consult with her attorney who was, by defense counsel's own admission, unavailable." The verdict convicting defendant of second degree harassment (see Penal Law § 240.26[1]) was not against the weight of the evidence (see People Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis upon which to disturb the trial court's determinations concerning credibility, including its resolution of minor inconsistencies in testimony. The evidence, including photographs of the victim's injuries and the arresting officer's testimony, established that defendant threatened to kill the complainant during a domestic dispute, then pushed her to the ground and hit her before dragging her to a bedroom and choking her (see People v Mack, 76 AD3d 467 [2010], lv denied 15 NY3d 922 [2010]; People v Correa, 75 AD3d 478 [2010], lv denied 15 NY3d 892 [2010]). The fact that the court acquitted defendant on other charges does not require a different conclusion (see People v Gutierrez, 91 AD3d 491 [2012]). All concur THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Clerk of the Court Decision Date: March 15, 2022