| People v Sweet |
| 2010 NY Slip Op 09762 [79 AD3d 1772] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jack Z. Sweet,Appellant. |
—[*1] Jack Z. Sweet, defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Theresa L. Prezioso of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Supreme Court, Niagara County (Richard C.Kloch, Sr., A.J.), entered October 31, 2008. The order denied the motion of defendant to vacate ajudgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Niagara County, for further proceedings in accordance with the followingmemorandum: Defendant appeals from an order denying his motion pursuant to CPL 440.10 tovacate the judgment convicting him after a jury trial of one count of robbery in the first degree(Penal Law § 160.15 [3]), and two counts each of burglary in the first degree (§140.30 [2], [3]) and robbery in the second degree (§ 160.10 [2] [a]). Defendant contends,inter alia, that Supreme Court erred in denying the motion without conducting a hearing on theissue whether trial counsel was ineffective in failing to move to dismiss the indictment based onthe alleged violation of defendant's statutory right to a speedy trial (see CPL 30.30 [1][a]). We agree. In support of the motion, defendant submitted evidence that the felony complaintwas filed on December 5, 2001 and that the People announced their readiness for trial on therecord on June 17, 2002. Because defendant made a prima facie showing that the People failed tocomply with CPL 30.30 (1) (a), the burden shifted to the People to demonstrate "sufficientexcludable time" (People v Kendzia, 64 NY2d 331, 338 [1985]; see People v Manning, 52 AD3d1295, 1295-1296 [2008]). The court erred in relieving the People of that burden and inimplicitly imposing the burden on defendant to show the absence of excludable time by failing toconduct a hearing at which the People would have had the burden of proof on the issue of"sufficient excludable time" (Kendzia, 64 NY2d at 338). Moreover, "[i]t is well settledthat a failure of counsel to assert a meritorious speedy trial claim is, by itself, a sufficientlyegregious error to render a defendant's representation ineffective" (People v St. Louis, 41 AD3d 897,898 [2007]). We therefore hold the case, reserve decision and remit the matter to Supreme Courtfor a hearing on that issue.
We have examined the remaining contentions of defendant, including those raised in his prose [*2]supplemental brief, and conclude that they are lacking inmerit. Present—Scudder, P.J., Smith, Green, Pine and Gorski, JJ.