Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Stephen Knopf, J., trial and sentence; Pauline A. Mullings, J., pre-trial order), rendered June 3, 2003. The judgment convicted defendant, after a nonjury trial, of seven counts of attempted sexual abuse in the second degree and one count of attempted endangering the welfare of a child.

Judgment of conviction affirmed.

Defendant moved to dismiss the information charging eight counts of sexual abuse in the second degree (Penal Law § 130.60, a class A misdemeanor) and one count of endangering the welfare of a child (Penal Law § 260.10 [2], a class A misdemeanor) on the ground that he was denied his right to a speedy trial pursuant to CPL 30.30 (1) (b). The court below denied said motion finding that only 48 days were chargeable to the People. On appeal, with regard to said finding, defendant only takes issue with the two adjournments that occurred between September 11, 2001 and December 13, 2001. He contends that while these adjournments occurred during the aftermath of the World Trade Center attacks, the People should not be permitted to rely on an executive order issued by Governor Pataki suspending the application of CPL 30.30. Defendant urges that the People based their reasoning for the adjournments of a scheduled pre-trial hearing on the absence of an arresting detective who subsequently did not testify at trial.

In the court below, defendant's sole argument in support of his request for a dismissal due to the denial of a speedy trial was that the People's statements of readiness were ineffective since they were sent to defendant's prior attorney rather than his current attorney. Thus, the court below had no opportunity to pass upon the issue presently before us. Procedural rules "require, at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error" (People v Luperon, 85 [*2]NY2d 71, 78 [1995]). It should also be noted that the record does not contain sufficient facts to pass on the issue of bad faith by the People in relying on the executive orders precisely because defendant omitted to raise and develop said issue. Under the circumstances, therefore,
we deem defendant's contention in reference to the purported denial of his right to a speedy trial unpreserved for this appeal (id.; see also People v Goode, 87 NY2d 1045 [1996]; People v Daniels, 36 AD3d 502 [2007]). In any event, we are of the view that the People's 90-day statutory period to be ready for trial cannot be deemed, in light of the executive orders issued by the Governor during the aftermath of the World Trade Center attacks, to have expired (see CPL 30.30 [4] [g]; 9 NYCRR 5.113, 5.113.7, 5.113.28, 5.113.42, 5.113.43-A; People v Fuller, 8 AD3d 204 [2002]; People v Smyth, 8 Misc 3d 139[A], 2005 NY Slip Op 51356[U] [App Term, 1st Dept]; People v Wright, 193 Misc 2d 207 [2002]).

Finally, we find no merit to defendant's assertion that he was denied his constitutional right to a jury trial as a result of the absence of a Spanish interpreter at the pre-trial proceeding where the People reduced the charges against the defendant from class A misdemeanors to class B misdemeanors. Defendant has not alleged that his grasp of the English language is so insufficient that he did not understand that the People were reducing the charges nor did he allege that his attorney, who stated on the record that defendant waived the presence of an interpreter, did not explain to defendant what was transpiring and that the reduction of the charges would deprive him of his right to a jury trial. In any event, the fact that a defendant would have been entitled to a jury trial if prosecuted on the original charges, does not, by itself, provide a basis to deny an otherwise appropriate reduction of charges (see People v Urbaez, 14 Misc 3d 135[A], 2007 NY Slip Op 50156[U] [App Term, 1st Dept]).

Golia, J.P., Rios and Belen, JJ., concur.
Decision Date: May 24, 2007