        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

219
KA 11-02357
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LORENZO D. WILLIAMS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, TREVETT CRISTO SALZER
& ANDOLINA P.C. (ERIC M. DOLAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Melchor E.
Castro, A.J.), rendered September 30, 2011. The judgment convicted
defendant, upon a jury verdict, of offering a false instrument for
filing in the first degree, offering a false instrument for filing in
the second degree, and practicing or appearing as attorney-at-law
without being admitted and registered.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, that part of the omnibus motion
seeking to dismiss the indictment pursuant to CPL 30.30 is granted,
and the indictment is dismissed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of offering a false instrument for filing in
the first degree (Penal Law § 175.35), offering a false instrument for
filing in the second degree (Penal Law § 175.30), and two counts of
practicing or appearing as an attorney-at-law without being admitted
and registered (Judiciary Law § 478). The convictions arose from
defendant filing two notices of retainer and appearance with the New
York State Workers’ Compensation Board.

     We agree with defendant that County Court erred in denying that
part of his omnibus motion seeking to dismiss the indictment pursuant
to CPL 30.30. Initially, we note that the People failed to preserve
for our review their present contention that they discharged their
duty under CPL 30.30 on March 7, 2006 inasmuch as they failed to raise
it in the court below (see People v Garcia, 296 AD2d 509, 510; see
generally People v Pallagi, 91 AD3d 1266, 1267) and, thus, this Court
has no power to review that contention (see CPL 470.15 [1]; People v
Concepcion, 17 NY3d 192, 195; People v LaFontaine, 92 NY2d 470, 474,
rearg denied 93 NY2d 849).
                                 -2-                           219
                                                         KA 11-02357

     In opposition to defendant’s CPL 30.30 application, the People
contended that the period from May 1, 2006 to March 9, 2011 in which
defendant was absent from the jurisdiction was not chargeable to them.
“A defendant must be considered absent whenever his location is
unknown and he is attempting to avoid apprehension or prosecution, or
his location cannot be determined by due diligence” (CPL 30.30 [4] [c]
[i]). “The police are not required to search for a defendant
indefinitely, but they must exhaust all reasonable investigative leads
as to his or her whereabouts” (People v Devore, 65 AD3d 695, 697; see
People v Petrianni, 24 AD3d 1224, 1224-1225). Here, the People
“failed to prove either that the defendant was attempting to avoid
apprehension or that his location could not be determined by due
diligence, a necessary predicate for an exclusion based upon the
defendant’s absence” (Devore, 65 AD3d at 696). As a result, the
period from May 1, 2006 to March 9, 2011 should not have been excluded
from the speedy trial calculation. We therefore grant that part of
defendant’s omnibus motion seeking to dismiss the indictment pursuant
to CPL 30.30.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
