People v. Buckner

254 A.D.2d 692, 678 N.Y.S.2d 552, 1998 N.Y. App. Div. LEXIS 10341

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 1998
• Status: Published

Opinion

Order unanimously affirmed. Memorandum: We affirm for reasons stated in the decision at Erie County Court (McCarthy, J.). We add only that the People’s contention that the location of defendant “is unknown and he is attempting to avoid apprehension” (CPL 30.30 [4] [former (c)]), a circumstance that would not require a showing of due diligence, is unpreserved for our review. That contention was not raised in the People’s response to defendant’s CPL 30.30 motion to dismiss or at the due diligence hearing (see, People v Bolden, 81 NY2d 146, 155-156), and we decline to address it as a matter of discretion in the interest of justice {see, CPL 470.15 [6] [a]). (Appeal from Order of Erie County Court, McCarthy, J. — Dismiss Indictment.) Present— Denman, P. J., Pine, Wisner, Balio and Fallon, JJ.