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