People v. Jeffries

62 A.D.3d 530, 879 N.Y.S.2d 118

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 2009
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Troy K. Webber, J, on suppression and speedy trial motions; Martin Marcus, J., at plea and sentence), rendered March 15, 2005, convicting defendant of assault in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 14 years to life, unanimously affirmed.

By pleading guilty, defendant forfeited his statutory speedy trial claim (see People v O'Brien, 56 NY2d 1009 [1982]). Defendant’s constitutional speedy trial claim is improperly raised for the first time in his reply brief (see People v Napolitano, 282 AD2d 49, 53 [2001], lv denied 96 NY2d 866 [2001]) Furthermore, since defendant’s speedy trial motion was based entirely on grounds set forth in CEL 30.30 and did not raise a constitutional issue, his constitutional claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits (see People v Taranovich, 37 NY2d 442 [1975]).

The court properly denied defendant’s motion to suppress a showup identification made at the scene of the crime. While the transcript of the hearing is apparently lost, we conclude, based on the hearing court’s detailed findings, that the showup was not unduly suggestive. Defendant’s sole argument is that the arresting officer “whispered” something to the victim prior to the identification. However, the hearing court’s findings indicated that the officer merely asked the victim whether she could identify the person who assaulted her.

Defendant’s procedural challenges to his persistent violent felony offender adjudication are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Concur—Andrias, J.P., Saxe, Sweeny, Nardelli and Freedman, JJ.