People v. Rodriguez

Judgments, Supreme Court, Bronx County, rendered October 27, 1992 (Richard Lee Price, J., at trial and sentence) and March 23, 1993 (Richard Lee Price, J., at plea and sentence), convicting defendant, after a jury trial, of assault in the third degree and, after a guilty plea, of bail jumping in the second degree, and sentencing him, respectively, to a term of 1 year and, as a second felony offender, to a concurrent term of 2 to 4 years, unanimously affirmed.

The People were entitled to compel defendant to undergo an AIDS blood test as this evidence was material to a charge of attempted murder. Although defendant was within his rights to assert his right to privacy, any prejudice from the resulting delay was a risk he deliberately assumed by his conduct (People v Etheridge, 116 Misc 2d 98, 101-102). Defendant may not use his right as both a sword and a shield by claiming that the delay occasioned by litigating the privacy issue deprived him of his right to a speedy trial. Time that was not otherwise excludable pursuant to CPL 30.30 (4) (a) or (b) was excludable under CPL 30.30 (4) (g) (i) and (ii). Concur—Rosenberger, J. P., Ellerin, Rubin, Ross and Tom, JJ.