| People v Rickard |
| 2010 NY Slip Op 02217 [71 AD3d 1420] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Martin P.Rickard, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedMay 5, 2008. The judgment convicted defendant, upon a nonjury verdict, of driving whileintoxicated, as a class D felony, aggravated unlicensed operation of a motor vehicle in the firstdegree, and two traffic infractions.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial of, interalia, felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193[1] [c] [former (ii)]), defendant contends that County Court erred in denying his motion todismiss the indictment on statutory speedy trial grounds (see CPL 30.30). We reject thatcontention. Defendant was arraigned in Town Court, New Albion, on October 27, 2006,following which the Town Judge faxed an order to the Public Defender's Office, assigning thePublic Defender as defense counsel. The Public Defender first appeared in the case on November1, 2006 and advised the Assistant District Attorney that defendant was waiving his right to apreliminary hearing. We thus conclude that, prior to November 1, 2006, defendant was "withoutcounsel" (People v Drake, 205 AD2d 996, 997 [1994]), and that County Court properlyexcluded five days from the statutory six-month period pursuant to CPL 30.30 (4) (f).
Defendant further contends that the statement of readiness filed by the People on May 1,2007, the last day of the six-month period, was untimely because he was not arraigned on theindictment until May 14, 2007. We reject that contention. "[W]here it is possible for thedefendant to be arraigned and the trial to go forward within the six-month period, apre-arraignment statement of readiness can be valid" (People v Carter, 91 NY2d 795,798 [1998]; see People v Goss, 87 NY2d 792, 794 [1996]; People v Kitchen, 234AD2d 964 [1996], lv denied 89 NY2d 1095 [1997]; People v Clarke, 233 AD2d831, 832 [1996], lv denied 89 NY2d 1010, 90 NY2d 856 [1997]). Here, the indictmentwas filed on April 26, 2007. Thus, it was possible to provide defendant with the requisite noticepursuant to CPL 210.10 (2) and to arraign him within the six-month period. The fact that thedefendant was actually arraigned following the expiration of the six-month period does notrender the statement of readiness either illusory or untimely, inasmuch as it is the responsibilityof the court rather than the People to schedule the arraignment. "Where, as [here], [*2]a felony complaint was previously filed in local criminal court, theCriminal Procedure Law imposes a nondelegable duty on the trial court to arraign the defendant.Neither local practice violative of CPL 210.10 (2) nor consent of the parties can divest the courtof this responsibility. Consequently, any delay in arraignment is attributable solely to the courtand not charged to the prosecution" (Goss, 87 NY2d at 798).
Viewing the evidence in the light most favorable to the People (see People v Contes,60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient to support theconviction (see generally People vConway, 6 NY3d 869, 872 [2006]; People v Santi, 3 NY3d 234, 246 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Further, viewing the evidence in light of the elementsof the crimes in this nonjury trial (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that theverdict is against the weight of the evidence. Indeed, based on the credible evidence presented attrial, we conclude that an acquittal would have been unreasonable (see generally id. at348; People v Romero, 7 NY3d633, 643-644 [2006]; Bleakley, 69 NY2d at 495).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Centra,Carni and Pine, JJ.