| People v Smith |
| 2013 NY Slip Op 06736 [110 AD3d 1141] |
| October 17, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TrevelJ. Smith, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered December 20, 2010, upon a verdict convicting defendant of thecrime of criminal possession of stolen property in the fourth degree.
Following an October 2008 break-in at a home, during which a television and otherproperty was stolen, defendant was charged by a January 2010 indictment with thecrimes of burglary in the second degree, grand larceny in the fourth degree and criminalpossession of stolen property in the fourth degree. Defendant moved to dismiss theindictment on statutory speedy trial grounds. County Court denied defendant's motionand his later motion for reconsideration. After a jury trial, defendant was acquitted of theburglary and larceny charges but was convicted of criminal possession of stolen propertyin the fourth degree. County Court sentenced him to a term of 1
County Court erred in denying defendant's motion to dismiss the indictment onstatutory speedy trial grounds. Where a defendant is accused of a felony, the People mustbe ready for trial within six months of the commencement of a criminal action(see CPL 30.30 [1] [a]; People v Jacobs, 45 AD3d 883, 883-884 [2007], lvdenied 9 NY3d 1035 [2008]). That six-month period is calculated " 'by computingthe time elapsed between the filing of the first accusatory instrument and the People'sdeclaration of readiness, subtracting any periods of delay that are excludable under theterms of the statute' " (People vPope, 96 AD3d 1231, 1232 [2012], lv denied 20 NY3d [*2]1064 [2013], quoting People v Cortes, 80 NY2d201, 208 [1992]; see People vFehr, 45 AD3d 920, 922 [2007], lv denied 10 NY3d 764 [2008]).Although CPL 30.30 (4) (a) requires the exclusion of "a reasonable period of delayresulting from other proceedings concerning the defendant, including but not limited to. . . [a] trial of other charges" (CPL 30.30 [4] [a]), the People bear theburden of establishing "their entitlement to exclude any prereadiness delays from thecalculation under a CPL 30.30 motion" and, as such, must "ensure that the record issufficiently clear as to who is chargeable for" a delay (People v Robinson, 67 AD3d1042, 1044 [2009], lv denied 13 NY3d 910 [2009]; see People vCollins, 82 NY2d 177, 181-182 [1993]; People v Seamans, 85 AD3d 1398, 1399 [2011]; People v Stewart, 57 AD3d1312, 1314 [2008], lv denied 12 NY3d 788 [2009], cert denied 558US 1116 [2010]; see also People v Moulton, 172 AD2d 1001, 1001-1002[1991]).
Here, while other periods of time were at issue before County Court, the time that isdispositive to defendant's speedy trial claim is the 112-day period from March 27,2009—the date of defense counsel's entry into the case—until defendant'sJuly 17, 2009 written waiver of his right to a speedy trial. In opposition to defendant'smotion to dismiss, the People noted that another criminal action was pending againstdefendant in Albany County at the time that this action was commenced and assertedthat, "in conferring with defendant's new counsel [after March 27, 2009], it was agreedand understood that no action would be taken to obtain an indictment in the instantmatter while counsel for . . . defendant endeavored to obtain a favorableplea disposition in the Albany County matter." Despite "conced[ing] that the betterpractice would be to encompass the understanding of the parties in a stipulation, letter orother written instrument," the People argued that the delay from March 27 until July 17should be excluded from the speedy trial calculation pursuant to CPL 30.30 (4) (a).County Court excluded that time, finding that "the record indicates that" the partiesreached an agreement as asserted by the People.
We disagree. There is no support in the record for the People's unsubstantiated claimthat "it was agreed and understood" that defendant consented to an adjournment orwaiver from March 27, 2009 until July 17, 2009. "Adjournments consented to by thedefense must be clearly expressed to relieve the People of the responsibility for thatportion of the delay" (People v Smith, 82 NY2d 676, 678 [1993]; see Peoplev Battaglia, 187 AD2d 808, 810 [1992]). "While a defendant may waive rights underCPL 30.30, the record here contains no evidence of any waiver, written or oral," and theCourt of Appeals has made clear that "prosecutors would be well advised to obtainunambiguous written waivers in situations like these" (People v Dickinson, 18 NY3d835, 836 [2011] [internal quotation marks and citation omitted]). As the Peoplefailed to meet their burden of proving that the disputed 112-day period was notchargeable to them (see People v Collins, 82 NY2d at 181-182; People vSeamans, 85 AD3d at 1400; People v Wiggins, 197 AD2d 802, 804 [1993];People v Moulton, 172 AD2d at 1001-1002; compare People v Crogan,237 AD2d 745, 745-746 [1997], lv denied 90 NY2d 857 [1997]), the People didnot establish that they were ready for trial within the statutory six-month period(see CPL 30.30 [1] [a]). Therefore, defendant was entitled to dismissal of theindictment pursuant to CPL 30.30.
Considering our resolution of this issue, defendant's remaining arguments areacademic.
Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the judgment is reversed,on the law, and indictment dismissed.