           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
53
KA 07-01490
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

HARVEY L. BUSSEY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered May 11, 2007. The judgment
convicted defendant, upon a jury verdict, of criminal sale of a
controlled substance in the third degree and criminal possession of a
controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of criminal sale of a controlled substance in the
third degree (Penal Law § 220.39 [1]) and criminal possession of a
controlled substance in the third degree (§ 220.16 [1]). We reject
the contention of defendant that Supreme Court erred in denying his
motion to dismiss the superseding indictment based on the violation of
his statutory right to a speedy trial, pursuant to CPL 30.30. The
People became aware less than 24 hours prior to the scheduled
arraignment that defendant, who had previously been released on his
own recognizance, was in custody in a different county on an unrelated
charge. The court therefore properly excluded an additional 14 days
because, once defendant’s unavailability was known, the People could
not by the exercise of due diligence obtain his presence at the
scheduled arraignment (see CPL 30.30 [4] [c] [i]). We also reject
defendant’s challenge to the severity of the sentence.




Entered:   February 10, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
