| People v Seamans |
| 2011 NY Slip Op 05148 [85 AD3d 1398] |
| June 16, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v AdamSeamans, Respondent. |
—[*1] Patrick Perfetti, Cortland, for respondent.
Peters, J. Appeal from an order of the County Court of Cortland County (Ames, J.), enteredJuly 22, 2010, which granted defendant's motion to dismiss the indictment.
On April 21, 2009, defendant was arraigned on felony complaints charging him with variouscrimes stemming from a fire in the Town of Homer, Cortland County. The People later presentedthose charges to a grand jury which resulted in an indictment charging defendant and hiscodefendant, Andrew J. Hernandez, with burglary in the second degree and arson in the thirddegree, among other things.[FN*]Defendant was arraigned on the indictment on December 17, 2009, at which time the Peopledeclared their readiness for trial. Defendant thereafter moved to dismiss the indictment on speedytrial grounds. County Court granted the motion after a hearing, finding that the People ran afoulof their statutory speedy trial obligation by one day. The People appeal.
The People must be ready for trial within six months of the commencement of a [*2]criminal action charging a felony (see CPL 30.30 [1] [a];People v Cortes, 80 NY2d 201, 208 [1992]; People v Nelson, 68 AD3d 1252, 1253 [2009]). Here, the statutoryspeedy trial period ran from April 21, 2009—the date of the filing of the first accusatoryinstrument—to October 21, 2009. Because "the day which begins the running of the'speedy trial clock' is excluded from the reckoning of days" in computing the six-month period(People v Stirrup, 91 NY2d 434, 437 n 2 [1998], quoting People v Stiles, 70NY2d 765, 767 [1987]; see People v Chavis, 91 NY2d 500, 504 n 3 [1998]; People vDiMeglio, 294 AD2d 239, 240 [2002]), the People had 183 days to declare their readinessfor trial. The parties agree that defendant did not have counsel until April 28, 2009 and that, onthat date, counsel requested an adjournment until June 16, 2009, thus rendering 56 dayschargeable to defendant (see CPL 30.30 [4] [b], [f]). This excludable time period reducesthe total days chargeable to the People to 184. Therefore, it was incumbent upon the People toprove their entitlement to exclude any prereadiness delays from the calculation (see People vCortes, 80 NY2d at 215-216; Peoplev Robinson, 67 AD3d 1042, 1044 [2009], lv denied 13 NY3d 910 [2009]; People v Stewart, 57 AD3d 1312,1314 [2008], lv denied 12 NY3d 788 [2009], cert denied 558 US —, 130 SCt 1047 [2010]).
The People's sole contention in this regard is that the period of time during which theyengaged in plea negotiations with Hernandez is excludable from the speedy trial calculationpursuant to the "exceptional circumstances" provision of CPL 30.30 (4) (g). On September 28,2009, the People made a plea offer to Hernandez in connection with his involvement in the arsonand burglary. The offer was conditioned upon, among other things, Hernandez "giving truthfultestimony at every step of the criminal case" against defendant, including before the grand jury.The People received a signed plea agreement from Hernandez on October 6, 2009, but he wasultimately unable to provide an allocution to the arson charge to the satisfaction of the People. Asa result, he was thereafter indicted, along with defendant, on November 12, 2009.
Although "[t]here is no precise definition of what constitutes an exceptional circumstanceunder CPL 30.30 (4) (g)," the Court of Appeals has ruled that application of this exclusion ispermitted "only when the People for practical reasons beyond their control cannot proceed with alegally viable prosecution" (People vPrice, 14 NY3d 61, 64 [2010] [internal quotation marks and citation omitted]). In otherwords, "the People may not rely on factors which do not actually prevent them from being readyto proceed to trial to justify a failure to timely announce readiness" (People v Smietana,98 NY2d 336, 341 [2002]). Moreover, "although not required, the statute's text contemplates thatthe prosecutor will seek a continuance from the court where the circumstances make itimpossible to proceed. The Legislature thus envisioned an approach by which the prosecutorcould secure a prior judicial ruling as to exceptional circumstances rather than ask a court toapply the exclusion after the fact" (People v Price, 14 NY3d at 64).
The circumstances presented here are not exceptional within the meaning of CPL 30.30 (4)(g). The People never sought a continuance while attempting to secure Hernandez's grand jurytestimony. Further, Hernandez did not seek to exercise his right to testify before the grand jurypursuant to CPL 190.50—a right which the People would have been required tohonor—but rather it was the People who desired Hernandez's grand jury testimony andattempted to secure it through negotiation of a plea agreement (compare People v Sorce,214 AD2d 756, 756 [1995], lvs denied 86 NY2d 741, 847 [1995], 88 NY2d 1024 [1996];People v Khan, 172 AD2d 231, 231-232 [1991]; People v Fluellen, 160 AD2d219, 221-222 [1990]). Thus, the People were not prohibited from presenting the case to the grandjury without the testimony of Hernandez, but merely preferred not to do so without it. Nor isthere any evidence that the People lacked [*3]sufficient evidenceto proceed with the indictment of defendant in the absence of Hernandez's testimony; indeed,defendant was indicted without such testimony. Under these circumstances, we agree withCounty Court that the People failed to establish that they were unable to proceed with theindictment of defendant "for practical reasons beyond their control" (People v Price, 14NY3d at 64). As the People failed to establish their entitlement to exclusion of any furtherperiods of time, the indictment was properly dismissed on speedy trial grounds.
Mercure, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed.
Footnote *: County Court subsequentlygranted defendant's motion for a severance.