| People v Nunez |
| 2008 NY Slip Op 00568 [47 AD3d 545] |
| January 29, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Appellant, v JuanNunez, Respondent. |
—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York City (Kerry S. Jamiesonof counsel), for respondent. Juan Nunez, respondent pro se.
Order, Supreme Court, Bronx County (William I. Mogulescu, J.), entered on or about April13, 2007, which granted defendant's CPL 30.30 motion to dismiss the indictment, unanimouslyaffirmed.
The People concede that the motion court properly included 123 days, and only challenge theinclusion of three periods of delay. Exclusion of any of these three periods would require denialof the motion.
The People dispute 15 of the 25 days included in connection with the adjournment fromApril 7 to May 16, 2006. On April 7 the People initially requested an adjournment to April 17,but then indicated that their readiness on that date would depend on whether the assignedprosecutor would be trying another case, and suggested that they might need an adjournment toMay 2. The motion court properly included the time between April 17 and May 2, because thePeople's request for the April 17 date was rendered equivocal by their suggestion of the May 2date (see People v Collins, 82 NY2d 177, 181-182 [1993]).
The People also dispute 36 of the 42 days included in connection with the June 13 to July 25,2006 adjournment, arguing that since they only requested an adjournment to June 19, only thatperiod should be included. However, the record supports the motion court's finding that therequest for a June 19 date was merely an illusory expectation of future readiness (see Peoplev Kendzia, 64 NY2d 331, 337-338 [1985]; see also People v England, 84 NY2d 1, 4[1994]). In response to the People's request for a June 19 date, the calendar court (whichultimately became the motion court) indicated its skepticism, noting the People's four priorrequests for an adjournment. It directed the People to file a certificate of readiness and advisedthat the time would be includable until they did so. However, no certificate was filed untilAugust 16. Under the circumstances, it was appropriate for the court to insist on a certificate,which would have been a conclusive means of stopping the speedy trial clock (see People vStirrup, 91 NY2d 434, 440 [1998]).
Lastly, the People dispute the 22 days included in connection with the delay between July[*2]25 and the filing of the certificate of readiness. On July 25,when the People stated they were still not ready and asked for three weeks, the Legal Aid Societyattorney assigned to defendant's case was absent but a different Legal Aid attorney appeared ondefendant's behalf. The absence of the assigned attorney did not contribute to the delay, whichwas clearly the product of the People's unreadiness. Therefore, defendant was not "withoutcounsel" within the meaning of CPL 30.30 (4) (f) (compare People v DeLaRosa, 236AD2d 280, 281 [1997]). Furthermore, this period is not excludable under CPL 30.30 (4) (b) inthe absence of a clear expression of consent (see People v Liotta, 79 NY2d 841 [1992]).Although defense counsel said "fine" in response to the trial court's suggestion of August 21 asan adjourned date, in context this amounted to a representation that such date was notinconvenient, but did not imply consent (see People v Smith, 82 NY2d 676 [1993]).Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and Acosta, JJ.