| People v Titus |
| 2012 NY Slip Op 03673 [95 AD3d 1042] |
| May 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Fulton Titus, Appellant. |
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Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy,and Allison Ageyeva of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.),rendered May 21, 2010, convicting him of assault in the third degree, after a nonjury trial, andimposing sentence. The appeal brings up for review the denial (Foley, J.) of the defendant'smotion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was deprived ofhis statutory right to a speedy 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.
On August 8, 2007, the People commenced this action with the filing of a criminal complaintagainst the defendant. Pursuant to CPL 30.30 (1) (a), the People were required to be ready fortrial within six months of the commencement of this criminal action, in which a felony wascharged (see People v Goss, 87 NY2d 792, 796 [1996]; People v Rahim, 91 AD3d 970,971 [2012]). In this case, the six-month period consisted of 183 days. On February 11, 2009, thedefendant moved to dismiss the indictment on the ground that he had been deprived of hisstatutory right to a speedy trial, contending that 506 days were chargeable to the People. Inopposition, the People contended that only 143 days were chargeable to them. The SupremeCourt denied the defendant's motion, determining that 162 days were chargeable to the People.
On appeal, the People correctly concede that those 162 days are chargeable to them. Thedefendant correctly contends that, since the People were not ready for trial on January 12, 2009,they should have been charged with the one-day period from January 12, 2009, to January 13,2009 (see People v England, 84 NY2d 1, 4 [1994]), thus adding another day to the periodof time chargeable to the People, for a total of 163 days. In addition, the defendant contends thatthe 27 days from January 10, 2008, when the People filed the indictment, until February 6, 2008,when the defendant was arraigned on the indictment and the People announced ready, werechargeable to the People. Although the issue of whether these 27 days are chargeable to thePeople is not preserved for [*2]appellate review, we reach it inthe exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]). On January10, 2008, there was no court proceeding. Contrary to the People's contention, the Supreme Courtfile contains no written notice of their readiness, and there is no indication that such a notice wasserved on the defendant and filed with the court on that date (see People v Kendzia, 64NY2d 331, 337 [1985]; People vBrown, 69 AD3d 871, 873 [2010]). Since the People's asserted reason for excluding thisperiod is not supported by the record (cf.People v Robinson, 47 AD3d 847 [2008]), this 27-day period must be added to the 163days chargeable to the People. The resulting total of 190 days exceeds the statutory six-monthspeedy trial period of 183 days (see CPL 30.30 [1] [a]).
Accordingly, the judgment must be reversed and the indictment dismissed (see People vCourtney, 249 AD2d 485, 485-486 [1998]).
In light of our determination, we do not reach the defendant's remaining contentions.Angiolillo, J.P., Dickerson, Hall and Cohen, JJ., concur.