| People v Allard |
| 2014 NY Slip Op 00111 [113 AD3d 624] |
| January 8, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dru Allard, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Monique Ferrell ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Sullivan, J.), rendered June 9, 2010, convicting him of menacing in the second degree asa hate crime (two counts), upon a jury verdict, and imposing sentence. The appeal bringsup for review the denial, after a hearing (Parker, J.), of that branch of the defendant'somnibus motion which was to suppress physical evidence, and the denial (Walsh, J.),without a hearing, of the defendant's motion pursuant to CPL 30.30 to dismiss theindictment on the ground that he was denied the statutory right to a speedy trial.
Ordered that the matter is remitted to the Supreme Court, Kings County, to hear andreport on the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on theground that he was denied the statutory right to a speedy trial, and the appeal is held inabeyance in the interim. The Supreme Court, Kings County, is to conduct the hearing andfile its report with all convenient speed.
The defendant contends that the Supreme Court erred in summarily denying hismotion pursuant to CPL 30.30 to dismiss the indictment on the ground that he wasdenied the statutory right to a speedy trial because the People failed to demonstrate, as amatter of law, their entitlement to exclude the period from July 27, 2007, through August28, 2007. Contrary to the People's contention, the defendant's claim that the summarydenial was error is properly preserved for appellate review (see CPL 470.05 [2];People v Hampton, 21NY3d 277, 284 n 2 [2013]; People v Prado, 4 NY3d 725 [2004]).
In felony cases, the People are required to be ready for trial within six months afterthe commencement of the criminal action (see CPL 30.30 [1] [a]; People v Headley, 100 AD3d775, 775-776 [2012]). A defendant seeking dismissal of the indictment on speedytrial grounds under CPL 30.30 meets his or her initial burden on the motion simply byalleging that the People failed to declare readiness within the statutorily prescribed period(see People v Beasley, 16NY3d 289, 292 [2011]; People v Goode, 87 NY2d 1045, 1047 [1996]). "'[O]nce the defendant has shown the existence of a delay greater than six months, theburden of proving that certain periods within that time should be excluded falls [*2]upon the People' " (People v Headley, 100 AD3d at776, quoting People v Berkowitz, 50 NY2d 333, 349 [1980]; see People vSantos, 68 NY2d 859, 861 [1986]; People v Wearen, 98 AD3d 535, 537 [2012]).
Here, the defendant sustained his initial burden on the motion by alleging that aperiod of unexcused delay in excess of six months had elapsed since the date that he wasarraigned on the felony complaint (see CPL 30.30 [1] [a]). In opposition, thePeople failed to conclusively demonstrate with "unquestionable documentary proof" thatthey satisfied that requirement (CPL 210.45 [5]; see People v Stanley, 275 AD2d423 [2000]; People v Figaro, 245 AD2d 300 [1997]; People v Thomas,210 AD2d 736 [1994]; People v Boyd, 189 AD2d 433, 437 [1993]; cf.People v Morgan, 259 AD2d 771, 772 [1999]; People v Belgrave, 226AD2d 550 [1996]). Accordingly, the matter must be remitted to the Supreme Court,Kings County, for a hearing on the defendant's motion (see CPL 210.45 [5];People v Santos, 68 NY2d at 861; People v Berkowitz, 50 NY2d at 349;People v Washington, 82AD3d 1675, 1677 [2011]; People v Smith, 245 AD2d 534 [1997];People v Mackenzie, 231 AD2d 740, 741 [1996]; People v Davis, 184AD2d 575, 577-578 [1992]; People v Reid, 102 AD2d 835, 836 [1984]).
We decide no other issues at this juncture. Skelos, J.P., Leventhal, Lott and Cohen,JJ., concur.