| People v White |
| 2012 NY Slip Op 01906 [93 AD3d 1181] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ronald White,Appellant. |
—[*1] Ronald White, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (John L. Michalski, A.J.),rendered December 14, 2010. The judgment convicted defendant, upon a jury verdict, of rape inthe third degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Erie County, for further proceedings in accordance with the followingmemorandum: Defendant appeals from a judgment convicting him following a jury trial of rapein the third degree (Penal Law § 130.25 [3]), arising out of an incident that occurred onOctober 10, 2005. Defendant was arrested on August 20, 2008 and indicted on February 19,2009. We reject defendant's contention in his main brief that Supreme Court erred in denying hismotion to dismiss the original indictment pursuant to CPL 30.30 (1) (a). Contrary to thecontention of defendant, the People complied with their obligation to be ready for trial within sixmonths of the commencement of the criminal action (see CPL 30.30 [1] [a]). The Peopleannounced their readiness for trial in open court on February 19, 2009, within the six-monthperiod (see People v Goss, 87 NY2d 792, 797 [1996]; see generally People vKendzia, 64 NY2d 331, 337 [1985]). Although defendant was not arraigned until March 6,2009, the time between the announcement of readiness and the arraignment "is attributable solelyto the court and not charged to the prosecution" (Goss, 87 NY2d at 798; see People v Rickard, 71 AD3d1420, 1421 [2010], lv denied 15 NY3d 809 [2010]). In addition, we conclude thatbecause defendant received prompt written notice of the People's readiness for trial, despite thefact that defense counsel was not present at the time of the announcement of readiness and thewritten notice was sent to the wrong attorney, the People satisfied their obligation to notifydefendant of their readiness within the requisite six-month period (see People v Roberts,176 AD2d 1200, 1200-1201 [1991], lv denied 79 NY2d 831 [1991]; see generallyPeople v Carter, 91 NY2d 795, 799 [1998]).
We reject defendant's further contention in his main brief that the court erred in denying hismotion to dismiss the superseding indictment on the ground that the People failed to comply withCPL 30.30 (1) (a). The superseding indictment, which only corrected the date of the offense,related back to the commencement of the proceeding for purposes of computing the six-[*2]month period (see People v Sinistaj, 67 NY2d 236, 239[1986]).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject the contention of defendant in his pro se supplemental brief thatthe verdict is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]).
Defendant further contends in his pro se supplemental brief that his constitutional rights to aspeedy trial and due process of law were violated by the preindictment delay of approximately 40months (see generally People v Singer, 44 NY2d 241, 253-254 [1978]; People vWheeler, 289 AD2d 959, 959-960 [2001]). Defendant failed to raise that contention beforethe trial court, and thus it is not preserved for our review (see People v Faro, 83 AD3d 1569, 1569 [2011], lv denied17 NY3d 858 [2011]). Defendant also contends, however, that the failure of defense counselto move to dismiss the indictment on that ground deprived him of effective assistance of counsel(see People v Edwards, 271 AD2d 812, 812 [2000]). Because we cannot determine onthis record whether counsel's failure to make that motion deprived defendant of meaningfulrepresentation, we hold the case, reserve decision and remit the matter to Supreme Court for ahearing to determine whether the preindictment delay deprived defendant of his constitutionalrights to a speedy trial and due process (see id. at 812-813). Present—Scudder,P.J., Smith, Fahey, Carni and Sconiers, JJ.