People v. Washington

233 A.D.2d 684, 650 N.Y.S.2d 334, 1996 N.Y. App. Div. LEXIS 12080
Appellate Division of the Supreme Court of the State of New York·Decided November 21, 1996·Published·Cited by 21 cases

Opinion

Spain, J. Appeal from a judgment of the County Court of Albany County (Teresi, J.), rendered February 17, 1995, upon a verdict convicting defendant of two counts of the crime of criminal possession of a controlled substance in the third degree.

On December 4, 1990, at approximately 2:30 a.m., a vehicle driven by Jamel Davis was stopped by State Trooper Ferando Ortega on the Thruway in the Town of Coeymans, Albany County, for having no front license plate and for having no illumination on the rear license plate, each in violation of the Vehicle and Traffic Law. Defendant was a front seat passenger in the vehicle; two other passengers were situated in the back seat. None of the individuals in the vehicle produced a valid driver’s license and, after ascertaining that there were no licensed drivers available to operate the vehicle, Ortega proceeded to impound and inventory the vehicle in accordance with the procedures set forth in the State Police Field Manual. While Ortega was inventorying the contents of the vehicle, he noticed a brown paper bag stuffed behind the air vents in the front dashboard; the air vents were secured by two screws which looked to Ortega as if they had been previously removed. Ortega removed the screws and the vent and retrieved the brown paper bag which contained over 200 small plastic vials containing a white chunky substance. Subsequent laboratory analysis revealed that the substance was cocaine and that the total weight was more than one half of an ounce.

All four occupants of the vehicle were arrested. Defendant was charged with two counts of criminal possession of a controlled substance in the third degree. Defendant later discharged his attorney and filed a successful pro se writ of ha[685]*685beas corpus; the writ was granted and he was released from custody on February 8, 1991. On February 27, 1991 defendant was indicted as originally charged. Defendant failed to appear for arraignment on March 12, 1991 and on April 2, 1991 a bench warrant was issued for his arrest. On March 15, 1993 defendant, while incarcerated in the Albany County Jail pursuant to a bench warrant on an unrelated charge, was arrested on the bench warrant issued in this case and on April 5, 1993 he was arraigned on the 1991 indictment. The People declared their readiness to proceed to trial at that time. Following a jury trial, defendant was convicted of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1], [12]). Thereafter, County Court denied defendant’s motion pursuant to CPL article 330 to set aside or modify the verdict. Defendant was sentenced to concurrent indeterminate terms of imprisonment of 81/s to 25 years on each count. Defendant appeals.

We affirm. Initially, we reject defendant’s contention that he was denied his statutory and constitutional right to a speedy trial. The record supports County Court’s conclusion that defendant’s whereabouts between March 4, 1991 and March 15, 1993 were unknown and that law enforcement officials took diligent steps in attempting to locate him. A State Trooper testified that after the bench warrant was issued he instituted a "File 5” wanted person entry on defendant which was sent via the State Police computer network to alert police agencies nationwide that defendant was wanted. He and other officers periodically ran criminal history checks on defendant to ascertain whether he had been arrested by another agency. Defendant’s driver’s license records were reviewed and once it was learned that defendant had been arrested previously, investigators checked his last known address and interviewed neighbors. The record also shows that during this time defendant was arrested several times within the State using various aliases and dates of birth from which it can justifiably be inferred that he was avoiding prosecution. There was ample evidence that the two-year delay was caused by defendant’s own absence and attempt to avoid apprehension or prosecution and that his location could not be determined by due diligence (CPL 30.30 [4] [c]), thereby making that time period chargeable to defendant.

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People v. Washington, 233 A.D.2d 684, 650 N.Y.S.2d 334, 1996 N.Y. App. Div. LEXIS 12080 (N.Y. Ct. App. 1996).

233 A.D.2d 684 (People v. Washington) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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