| People v Dickinson |
| 2010 NY Slip Op 07832 [78 AD3d 1237] |
| November 4, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert GuyDickinson, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered September 10, 2009, upon a verdict convicting defendant of the crimes of driving whileability impaired, aggravated unauthorized operation of a motor vehicle in the first degree and resistingarrest, and the traffic infraction of failure to comply with a lawful order of a police officer.
In October 2008, an indictment was filed charging defendant with, among other things, drivingwhile intoxicated, aggravated unlicensed operation of a motor vehicle in the first degree, failure to obeya police officer and resisting arrest. After filing pretrial motions, defendant moved to dismiss theindictment because a police officer testified before the grand jury that the incident that led to defendant'sarrest occurred on a date other than that specified in the indictment. The District Attorney consented tothe dismissal of the indictment, obtained leave to re-present the matter to a grand jury and subsequentlyobtained a superceding indictment charging defendant with crimes identical to those that were set forthin the original indictment. In addition, the District Attorney filed a statement announcing that theprosecution was ready for trial and also submitted a special information in support of its contention thatthe crimes alleged in the indictment are of a higher grade because defendant had prior convictions foralcohol-related offenses. Thereafter, defendant once again moved to dismiss the indictment, this timealleging that he had been denied his right to a speedy trial. County Court denied the motion and, [*2]after a jury trial, defendant was found not guilty of driving whileintoxicated, but guilty of driving while ability impaired, aggravated unauthorized operation of a motorvehicle in the first degree, resisting arrest and failing to comply with a lawful order of a police officer. Anaggregate term of imprisonment of 1 to 3 years was imposed as defendant's sentence, and this appealensued.
Defendant initially argues that he was denied his right to a speedy trial because more than sixmonths elapsed from the time the first accusatory instrument was filed against him and the prosecution,after obtaining the superceding indictment, declared it was ready for trial (see CPL 30.30 [1][a]). Whether the prosecution has satisfied its statutory obligation to be ready for trial within six monthsis " 'generally determined by computing the time elapsed between the filing of the first accusatoryinstrument and the People's declaration of readiness, subtracting any periods of delay that areexcludable under the terms of the statute and then adding to the result any postreadiness periods ofdelay that are actually attributable to the People and are ineligible for an exclusion' " (People v Ramos, 48 AD3d 984, 986[2008], lv denied 10 NY3d 938 [2008], quoting People v Cortes, 80 NY2d 201, 208[1992]; see People v Fehr, 45 AD3d920, 922 [2007], lv denied 10 NY3d 764 [2008]).
Here, the parties agree that the original accusatory instrument charging defendant with a crime inconnection with this incident was filed on April 17, 2008 and the prosecution announced its readinessto proceed to trial on the superceding indictment some 11 months later. Initially, we note that thethree-month period between May 14, 2008 and August 18, 2008 is not chargeable to the prosecutionbecause the parties were involved in ongoing plea discussions and defendant does not deny that he andhis counsel actively pursued and participated in these negotiations (see CPL 30.30 [4] [b]; People v Golgoski, 43 AD3d 551, 552[2007]; People v Phillips, 277 AD2d 816, 818 [2000], lv denied 96 NY2d 804[2001]). Moreover, defendant does not allege that any delays that occurred from October 28,2008—when the prosecution announced its readiness for trial on the initialindictment—through March 20, 2009—when it consented to itsdismissal—"directly implicate[d] the [prosecution's] ability to proceed with trial" (People v Robinson, 67 AD3d 1042,1044 [2009], lv denied 13 NY3d 910 [2009]; see People v Hicks, 55 AD3d 1138, 1142 [2008], lv denied 12NY3d 758 [2009]; compare People vWeaver, 34 AD3d 1047, 1049 [2006], lv denied 8 NY3d 928 [2007]). As a result,this time period cannot be included in any speedy trial calculation chargeable to the prosecution (see People v Nelson, 68 AD3d 1252,1254 [2009]; People v Robinson, 67 AD3d at 1044). We also note that, during this period,defendant filed motions addressed to the indictment and, as those motions were still pending as ofMarch 5, 2009, this time period is not chargeable to the prosecution (see CPL 30.30 [4] [a];People v Stewart, 57 AD3d 1312,1314 [2008], lv denied 12 NY3d 788 [2009], cert denied 558 US —, 130 SCt 1047 [2010]). Under the circumstances, and taking into account that more than 7 of the 11 monthsthat passed before the prosecution answered ready for trial is excludable time not chargeable to theprosecution, defendant's statutory right to a speedy trial was not violated and his motion in that regardwas appropriately denied by County Court.
Defendant also claims that he was denied a fair trial because the superceding indictment madeexpress reference to his prior convictions for driving while intoxicated and the procedures employed inCPL 200.60 were not followed. Defendant failed to preserve this argument for this Court's review(see CPL 470.05 [2]; People vGibson, 21 AD3d 577, 578 [2005]; see also People v Ward, 57 AD3d 582, 583 [2008], lv denied12 NY3d 789 [2009]; People v Reid, 232 AD2d [*3]173,174 [1996], lv denied 90 NY2d 862 [1997]), and we decline to exercise our interest of justicejurisdiction to take corrective action (compare People v Boyles, 210 AD2d 732, 733 n 1[1994]).
Cardona, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.