People v. Barham

216 A.D.2d 477, 628 N.Y.S.2d 554, 1995 N.Y. App. Div. LEXIS 6414

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered September 9, 1992, convicting him of robbery in the first degree and assault in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of the defendant’s motion to dismiss the indictment pursuant to CPL 30.30 and the denial, after a hearing, of that branch of his omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the 40 days which elapsed while the Supreme Court considered the People’s motion to reargue dismissal of the first indictment was excludable under CPL 30.30 (4) (a) (see, People v Chapman, 185 AD2d 892, ; People v Pomales, 159 AD2d 451, 451-452). Since the time chargeable to the People did not exceed six months, the court properly denied the defendant’s motion to dismiss the indictment pursuant to CPL 30.30.

The court also properly declined to suppress the complainant’s identification testimony. The lineup procedure was neither impermissibly suggestive (see, People v Ahmed, 173 AD2d 546, 547; see also, People v Harvall, 196 AD2d 553, 554) nor tainted by the officers’ statements (see, People v Jeffries, 125 AD2d 412).

The sentence imposed was neither excessive nor unduly harsh (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Balletta, Rosenblatt and Altman, JJ., concur.