| People v Bonilla |
| 2012 NY Slip Op 03104 [94 AD3d 633] |
| April 24, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Jefferson Bonilla, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Richard J. Ramsay of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Robert Torres, J., at first speedy trial motion;Raymond L. Bruce, J., at second speedy trial motion; Robert A. Neary, J., at nonjury trial andsentencing), rendered June 24, 2010, convicting defendant of attempted assault in the thirddegree and harassment in the second degree, and sentencing him to an aggregate term of one yearof probation, unanimously reversed, on the law, and the accusatory instrument is dismissed.
Defendant's second speedy trial motion should have been granted. The People failed to beready for trial within the 90-day limit for the prosecution of a class A misdemeanor.
The charges were reduced to a misdemeanor on September 10, 2008, at which time thePeople first answered ready. This initial statement of readiness proved to be illusory. Whenviewed in light of the surrounding circumstances, the People's October 24, 2008 and January 20,2009 requests for adjournments, asserting a need for further investigation, effectively concededthat the prior statement of readiness was inaccurate. While a statement of readiness "is presumedto be accurate and truthful," (People v Acosta, 249 AD2d 161, 161 [1998], lvdenied 92 NY2d 892 [1998]), the record rebuts that presumption. Likewise, the record doesnot support an inference that the People made an initial strategic decision to proceed, ifnecessary, with a minimal prima facie case (compare People v Wright, 50 AD3d 429 [2008], lv denied10 NY3d 966 [2008]), but later determined to present additional evidence.
When the People file a statement of readiness, they must be presently ready to proceed; aprediction or expectation of future readiness is not acceptable (see People v Kendzia, 64NY2d 331, 337 [1985]). We accordingly conclude, after deducting a period from October 24,2008 to January 20, 2009 that was excludable for motion practice, that the People should havebeen charged 44 days (see People v Smith, 211 AD2d 586 [1995], lv denied 85NY2d 943 [1995]).
Next, the 16 days from January 20 to February 5, 2009 should have been charged to thePeople. The People answered not ready on January 20, and, after the matter was adjourned, theyfiled an off-calendar statement of readiness the next day. However, they did not mail the notice todefense counsel until February 4, and it arrived the next day. For an off-calendar statement ofreadiness to be effective, the People must provide written notice to both the court and defensecounsel (see People v Kendzia, 64 NY2d at 337).[*2]
The People concede that the four days between October16 and 20, 2009 and the seven days between February 9 and 16, 2010 should be charged to them.The People also requested a one-week adjournment on January 5, 2010, which should be chargedto them.
Finally, the People did not respond to defendant's second speedy trial motion until April 8,2010 although the court had ordered them to do so by March 11, 2010. Thus, the People arecharged with the 28-day delay in resolving the motion (see People v Reid, 245 AD2d 44[1997], lv denied 91 NY2d 1012 [1998]).
The total time for which the People should have been charged well exceeded the 90-daylimit. In light of the foregoing, we do not reach defendant's remaining speedy trial arguments, orhis claims regarding the sufficiency and weight of the evidence. Concur—Tom, J.P.,Friedman, Catterson, Acosta and Freedman, JJ.