People v. Vizzari

—Judgment, Supreme Court, New York County (Joan Carey, J., at trial with a jury), rendered May 31, 1988, convicting defendant of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree and sentencing him to an indeterminate term of imprisonment of 2Ví to 5 years and a current one-year jail term, unanimously affirmed.

Defendant was convicted of selling several pills to an undercover officer. Prior to trial defendant moved to dismiss the indictment based on the alleged failure of the People to comply with CPL 30.30 (1) (a). After the motion was denied, counsel submitted a supplemental affirmation alleging new facts, and claiming that the People did not establish "due diligence” under CPL 30.30 (4) (c). Before the People responded, the court denied the second application.

We find no merit to defendant’s claim that he is entitled to dismissal of the indictment or, in the alternative, a fact-finding hearing. The trial court did not abuse its discretion when it summarily denied defendant’s second application for relief. Defense counsel’s supplemental affirmation, submitted after the court ruled, raised new factual matter, but no explanation was offered to show that the additional facts were not available initially. Concur—Kupferman, J. P., Ross, Ellerin, Wallach and Rubin, JJ.