| People v Jacobs |
| 2007 NY Slip Op 08125 [45 AD3d 883] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v WilbertMichael Jacobs, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Franklin County (Assini, J.),rendered November 1, 2004, upon a verdict convicting defendant of the crimes of course ofsexual conduct against a child in the first degree (two counts) and endangering the welfare of achild (two counts).
Defendant was arrested on October 26, 2003 based on felony complaints alleging, amongother things, that he had engaged in repeated acts of sexual intercourse with his two adopteddaughters beginning when they were eight and nine years old. He was indicted on March 31,2004 for the crimes of course of sexual conduct against a child in the first degree (two counts)and endangering the welfare of a child (two counts). The People declared they were ready fortrial on April 1, 2004 (the day after the indictment was handed down), and again on April 21,2004, when defendant was arraigned. Defendant's subsequent motion to dismiss on statutoryspeedy trial grounds was denied. A jury trial was held in September 2004 and defendant wasconvicted of all the charges. County Court sentenced him to consecutive 20-year prison terms onthe two felonies and consecutive one-year terms on the two misdemeanors. Defendant appealsasserting that his speedy trial rights under CPL 30.30 were violated and that the sentence wasexcessive.
The People must be ready for trial within six months of the commencement of a [*2]criminal action in which a felony is alleged (see CPL 30.30[1] [a]; People v Carter, 91 NY2d 795, 798 [1998]). Here, defendant was arrested onfelony complaints on October 26, 2003 and the People declared their readiness on April 1, 2004and again on April 21, 2004, both dates were before the six-month period expired on April 26,2004. Defendant argues that the declaration of readiness was illusory because it was made beforearraignment, discovery had not been completed and the People later asked for an adjournment ofthe trial because a witness was not available.
Initially, we note that it appears some of the time is excludable based on a written waiver ofspeedy trial by defendant's counsel so that plea negotiations could be conducted (see People vJenkins, 302 AD2d 978, 978 [2003], lv denied 100 NY2d 562 [2003]) and also therewas a time during which defendant was without counsel through no fault of the court (seeCPL 30.30 [4] [f]). However, it is not necessary to address these excluded times since the Peopledeclared readiness within six months and defendant's argument that the declaration was illusoryis without merit. The fact that the People first declared that they were ready before defendant wasarraigned does not result in an illusory declaration where, as here, the record reveals the Peoplewere ready to proceed and the declaration was made adequately in advance of the time thestatutory period ended (see People v Carter, 91 NY2d at 798; People v Hammond, 35 AD3d905, 906 [2006], lv denied 8 NY3d 946 [2007]).
Defendant's discovery demands were not served until April 23, 2004, after readiness hadbeen declared, and the People responded by May 10, 2004. Even if defendant's demands hadbeen served before the People declared their readiness, the People responded within a reasonabletime frame and, as such, the time allotted to discovery would have been excluded (seeCPL 30.30 [4] [a]; People v Boomer, 220 AD2d 833, 836 [1995], lv denied 89NY2d 919 [1996]).
With regard to the People's witness who was recovering from surgery when the trial wasscheduled for mid-July 2004, there is no indication that she was not available in April 2004 whenthe People declared their readiness. In any event, a delay for such purpose could be excludedfrom the six-month time period (see CPL 30.30 [4] [g]; People v Alcequier, 15 AD3d 162,163 [2005], lv denied 4 NY3d 851 [2005]).
Defendant's sentence, which was less than the permissible maximum, was within CountyCourt's discretion and there are no extraordinary circumstances warranting a reduction thereof(see People v Tirado, 19 AD3d712, 714 [2005], lv denied 5 NY3d 810 [2005]; People v Morris, 275 AD2d818 [2000], lv denied 96 NY2d 737 [2001]).
Crew III, J.P., Mugglin, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.