| People v Sydlar |
| 2013 NY Slip Op 03874 [106 AD3d 1368] |
| May 30, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vGeorge Sydlar, Appellant. |
—[*1] John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Otsego County (Burns,J.), rendered November 19, 2010, upon a verdict convicting defendant of the crime ofdriving while intoxicated (two counts).
After a traffic stop on March 10, 2009, during which defendant exhibited signs ofintoxication, defendant was arrested and a chemical breath test revealed a blood alcohollevel of .13%. That same day, defendant was arraigned in Town Court on one count ofspeeding and two counts of driving while intoxicated. Defendant was later indicted onthe driving while intoxicated charges and, following an initial mistrial, a jury convicteddefendant as charged. County Court sentenced defendant to a term of 30 days ofincarceration and three years of probation. Defendant now appeals, arguing, among otherthings, that his right to a speedy trial was violated.
Where, as here, a defendant is charged with a misdemeanor punishable by a sentenceof more than three months of incarceration, the People are required to be ready for trialwithin 90 days of the commencement of the criminal action (see CPL 30.30 [1][b]; People v Cooper, 98 NY2d 541, 543 [2002]; People v Wright, 88 AD3d1154, 1156 [2011], lv denied 18 NY3d 863 [2011]). "Whether the Peoplecomplied with this obligation is 'determined by computing the time elapsed between thefiling of the first accusatory instrument and the People's declaration of readiness,subtracting any periods of delay that are excludable under the terms of the statute and[*2]then adding to the result any postreadiness periods ofdelay that are actually attributable to the People and are ineligible for an exclusion' " (People v Pope, 96 AD3d1231, 1232 [2012], lv denied 20 NY3d 1064 [2013], quoting People vCortes, 80 NY2d 201, 208 [1992]).
Here, 304 days elapsed between the filing of the simplified traffic informations onMarch 10, 2009 and the People's January 8, 2010 declaration of readiness on theindictment. Although the People filed their initial notice of readiness on April 27, 2009,defendant was without counsel through no fault of Town Court until May 28, 2009.Accordingly, the first 79 days must be excluded (see CPL 30.30 [4] [f]; People v Seamans, 85 AD3d1398, 1399 [2011]). To the extent that defendant contends that the notice ofreadiness was illusory because discovery requests had not yet been filed, this argument iswithout merit as the People are permitted a reasonable time to respond to a defendant'spretrial motions (see CPL 30.30 [4] [a]; People v Jacobs, 45 AD3d 883, 884 [2007], lvdenied 9 NY3d 1035 [2008]; People v Boomer, 220 AD2d 833, 836 [1995]).The next 21 days are also excludable, as defendant, who bears the burden of establishingpostreadiness delays (see People v Pope, 96 AD3d at 1233; People v Robinson, 67 AD3d1042, 1044 [2009], lv denied 13 NY3d 910 [2009]), makes no allegationthat, during the period prior to June 18, 2009, the People were not ready to proceed totrial. Another 28 days are excludable for pretrial motions between June 19, 2009 and July16, 2009, as well as the 50 days from November 20, 2009 through January 8, 2010,during which time Town Court considered defendant's pretrial motions and defendantwas arraigned on the indictment (see CPL 30.30 [4] [a]; People v Goss,87 NY2d 792, 796 [1996]). However, we find that the record is insufficient to enable usto determine the extent to which postreadiness periods of delay between July 17, 2009and November 19, 2009 were attributable to the People—as opposed todefendant—or to ascertain the merits of defendant's constitutional speedy trialclaims. Therefore, the matter must be remitted to County Court for a hearing to furtherdevelop the record in this regard (see People v Lee, 66 AD3d 1116, 1121 [2009]; Peoplev Boomer, 220 AD2d at 837).
The remaining issues asserted by defendant do not require extended discussion. First,we reject defendant's contention that his retrial was barred by double jeopardy. AsCounty Court granted a mistrial only after defendant moved for such relief, there was nobar to retrial (see Matter of Davis v Brown, 87 NY2d 626, 630 [1996];People v Call, 287 AD2d 877, 878 [2001], lv denied 97 NY2d 679[2001]). Next, although defendant failed to preserve his challenge to the legal sufficiencyof the evidence, we will evaluate the proof with respect to his assertion that the verdictwas not supported by the weight of the evidence (see People v McRobbie, 97 AD3d 970, 971 [2012], lvdenied 20 NY3d 934 [2012]). The State Troopers that conducted the traffic stoptestified that defendant smelled of alcohol, appeared disheveled, was unable to performthe roadside sobriety tests and, according to the results of the chemical breath screening,had a blood alcohol level of .13%. This testimony supports the finding that defendantwas intoxicated (see id. at 971-972; People v Carota, 93 AD3d 1072, 1073-1074 [2012]), andthe few inconsistencies in the Troopers' testimony "were thoroughly aired duringcross-examination" (People v Howard, 299 AD2d 647, 648 [2002], lvdenied 99 NY2d 629 [2003]; see People v Shaffer, 95 AD3d 1365, 1366-1367 [2012];People v Hamm, 29 AD3d1079, 1080-1081 [2006]).
Further, County Court properly denied defendant's motion to suppress his statementsto the arresting officers at the scene, as "persons temporarily detained pursuant to atypical traffic stop are not in custody for the purposes of Miranda" (People vHasenflue, 252 AD2d 829, 830 [1998], lv denied 92 NY2d 982 [1998]; see People v Kulk, 103 AD3d1038, 1039 [2013]). Defendant's later statement to one of the Troopers at the StatePolice barracks was also properly admitted. Although it was not included in the People'sCPL 710.30 notice, the statement was [*3]addressed atthe Huntley hearing, defendant had an opportunity to challenge it, and the recordsupports County Court's ruling that it was spontaneous (see People v Murphy, 101AD3d 1177, 1177-1178 [2012]; People v Henderson, 74 AD3d 1567, 1569 [2010],mod 77 AD3d 1168 [2010]). We have reviewed defendant's remainingcontentions, including that his sentence is harsh and excessive, and find them to beunavailing.
Lahtinen, Spain and Garry, JJ., concur. Ordered that the decision is withheld, andmatter remitted to the County Court of Otsego County for further proceedings notinconsistent with this Court's decision.