| People v Fulmer |
| 2011 NY Slip Op 06784 [87 AD3d 1385] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v DeshaunFulmer, Respondent. |
—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-respondent.
Appeal from an order of the Onondaga County Court (Joseph E. Fahey, J.), dated July 7,2010. The order granted the motion of defendant to dismiss the first superceding indictment.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, themotion is denied, the first superseding indictment is reinstated and the matter is remitted toOnondaga County Court for further proceedings on that indictment.
Memorandum: The People appeal from an order granting defendant's motion to dismiss thefirst superseding indictment on statutory speedy trial grounds (see CPL 30.30 [1] [a]).We agree with the People that defendant's statutory speedy trial rights were not violated and thusthat reversal is required. The People declared their readiness for trial within six months of thefiling of the first accusatory instrument (see CPL 30.30 [1] [a]; see generally People vCarter, 91 NY2d 795, 798 [1998]). County Court granted defendant's motion to dismiss thefirst superseding indictment on the ground that the People were charged with periods ofpostreadiness delay when they failed to act for a period of at least three weeks in obtaining asecond saliva sample from defendant for DNA testing upon realizing that the first sample hadbeen erroneously destroyed. "[P]ostreadiness delay may be charged to the People when the delayis attributable to their inaction and directly implicates their ability to proceed to trial"(Carter, 91 NY2d at 799). Here, the absence of the DNA sample did not implicate thePeople's ability to proceed to trial inasmuch as the People remained ready to proceed to trial evenin the absence of the DNA test results (see People v Wright, 50 AD3d 429, 430 [2008], lv denied10 NY3d 966 [2008]; People v Bargerstock, 192 AD2d 1058 [1993], lv denied82 NY2d 751 [1993]). Present—Centra, J.P., Fahey, Sconiers, Green and Martoche, JJ.