| People v Rahim |
| 2012 NY Slip Op 00808 [91 AD3d 970] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Ahmad Abdul Rahim, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach,J.), rendered June 23, 2008, convicting him of aggravated criminal contempt and criminalcontempt in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, by the same court (D'Emic, J.), of the defendant's motion pursuant to CPL30.30 to dismiss the indictment on the ground that he was deprived of his statutory right to aspeedy trial.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the groundthat he was deprived of his statutory right to a speedy trial is granted, the indictment is dismissed,and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering anorder in its discretion pursuant to CPL 160.50.
The Supreme Court erred in denying the defendant's motion pursuant to CPL 30.30 todismiss the indictment on the ground that he had been deprived of his statutory right to a speedytrial. Pursuant to CPL 30.30 (1) (a), the People were required to be ready for trial within sixmonths of the commencement of this criminal action, in which a felony was charged (seePeople v Goss, 87 NY2d 792, 796 [1996]; People v Smith, 88 AD3d 749 [2011], lv denied 17 NY3d955 [2011]). In this case, the six-month period consisted of 181 days. The People conceded that90 days of delay were chargeable to them. At issue on this appeal are three periods ofpostreadiness delay.
On December 10, 2007, after declaring their readiness for trial, the People requested anadjournment because the case had been reassigned to a new prosecutor, who needed time tobecome familiar with the case. The request was granted, and the proceeding was adjourned untilJanuary 2, 2008. On December 21, 2007, the People made a motion, returnable on January 2,2008, to take an oral swab from the defendant for a DNA test. Contrary to the People'scontention, the 12 days from December 21, 2007, through January 2, 2008, were not excludableunder CPL 30.30 (4) (a), as a reasonable period of delay resulting from a pretrial motion. The23-day adjournment from December 10, 2007, to January 2, 2008, was granted so that the newprosecutor could become familiar with the case, which adjournment, when granted, waschargeable to the People. The [*2]subsequent filing of a motiondid not serve to convert any portion of this chargeable 23-day period to an excludable period.Although the defendant failed to preserve this contention for appellate review, we reach it in theinterest of justice.
The second disputed time period occurred between January 2, 2008, when the People'smotion for a DNA test was granted, and March 19, 2008, when they announced the results of theDNA test. Contrary to the People's contention, because they failed to demonstrate that theyexercised due diligence in obtaining the DNA evidence, this 77-day period was not excludable onthe ground that their need to obtain the DNA test results constituted excusable, exceptionalcircumstances (cf. People vRobinson, 47 AD3d 847, 848 [2008]; People v Williams, 244 AD2d 587[1997]). Although the People were not required to move for DNA testing during the time that thedefendant's competency to understand the proceedings against him or to assist in his own defensewas unsettled, the defendant was found competent on September 6, 2007, and the People did notmove for DNA testing until December 21, 2007. The People's failure to move for DNA testingfor 3½ months demonstrated that they did not exercise due diligence in obtaining thisevidence (cf. People v Burwell, 260 AD2d 498 [1999]). Accordingly, the 77-day delaywas properly chargeable to the People (id.; see generally People v Washington,43 NY2d 772, 774 [1977]).
The final period of postreadiness delay occurred between March 19, 2008, and April 14,2008, the date on which a pretrial suppression hearing was scheduled. The People argued thatthis time period was excludable as a reasonable delay to allow them, after the granting of thedefendant's omnibus motion and failed plea negotiations, to prepare for the hearing and trial.However, the defendant's omnibus motion was granted four months before the adjournment thatwas granted on March 19, 2008 (cf.People v Reed, 19 AD3d 312, 314-315 [2005]), and the People failed to demonstrate onthe record that the parties were actually engaged in earnest plea negotiations (cf. People v Bahadur, 41 AD3d239, 240 [2007]; see generally People v Robbins, 223 AD2d 735 [1996]).Accordingly, the People failed to meet their burden of demonstrating that this 26-day period ofdelay was excludable (see generally People v Berkowitz, 50 NY2d 333, 349 [1980]["once the defendant has shown the existence of a delay greater than six months, the burden ofproving that certain periods within that time should be excluded falls upon the People"]).
Adding these three periods of chargeable postreadiness delay to the 90 days of delayconceded by the People, the People exceeded the 181 days in which they were required to beready for trial. Accordingly, the defendant's motion pursuant to CPL 30.30 to dismiss theindictment on the ground that he had been deprived of his statutory right to a speedy trial shouldhave been granted (see People v Chavis, 91 NY2d 500 [1998]; People v Devore, 65 AD3d 695,696 [2009]). Skelos, J.P., Dickerson, Austin and Miller, JJ., concur.