| People v Miller |
| 2014 NY Slip Op 00141 [113 AD3d 885] |
| January 9, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v GaryL. Miller, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Chemung County(Buckley, J.), rendered September 12, 2011, upon a verdict convicting defendant of thecrime of sexual abuse in the first degree.
This action was commenced on August 3, 2010 with the filing of a felony complaintcharging defendant with one count of sexual abuse in the first degree. Thereafter, inJanuary 2011, defendant was indicted and charged with one count of sexual abuse in thefirst degree and one count of sexual abuse in the third degree. This indictment, togetherwith the People's statement of readiness, was filed and hand-delivered to the PublicDefender's office on January 28, 2011, and the parties do not dispute that, as of this date,the People had seven days remaining on the speedy trial clock (see CPL 30.30 [1][a]; [4]).
Following various motions and a Huntley hearing, the matter was scheduledas a back-up trial to commence on May 24, 2011. During a pretrial calendar call onFriday, May 20, 2011, County Court advised the parties that this matter had progressedfrom No. 4 to No. 1 in the trial rotation, as a result of which the case would indeed betried on May 24. In response, the People indicated that they needed additional time toprepare their witness and requested an adjournment of the trial until a date later in thefour-week trial term. County Court granted the People's request and adjourned the trialuntil June 14, 2011, a period of three weeks.[*2]
After obtaining this adjournment but before thenew trial date, the People re-presented the case to a grand jury and, on June 9, 2011,obtained a superseding indictment charging defendant with two counts of sexual abuse inthe first degree. Defendant was arraigned on the superseding indictment on June 14,2011, and the trial again was adjourned—this time until July 26, 2011. Defendant'ssubsequent motion to dismiss on speedy trial grounds was denied and, following a jurytrial, defendant was convicted of sexual abuse in the first degree and sentenced to3½ years in prison followed by five years of postrelease supervision. This appealby defendant ensued.
"CPL 30.30 (1) (a) mandates that the People be ready for trial of a felony within sixmonths . . . from the commencement of the criminal action. Failure to beready within six months will result in dismissal of the indictment unless the prosecutioncan show that certain time periods should be excluded" (People v Gordon, 110 AD3d736, 737 [2013] [internal quotation marks and citation omitted]; see People v Johnson, 42AD3d 753, 754 [2007], lv denied 9 NY3d 923 [2007]). As the Court ofAppeals has instructed, "ready for trial" encompasses two distinct elements. "First, theremust be a communication of readiness by the People which appears on the trial court'srecord. This requires either a statement of readiness by the prosecutor in open court,transcribed by a stenographer, or recorded by the clerk or a written notice of readinesssent by the prosecutor to both defense counsel and the appropriate court clerk, to beplaced in the original record. . . . The second requirement under the statute. . . is that the prosecutor must make his [or her] statement of readinesswhen the People are in fact ready to proceed" (People v Kendzia, 64 NY2d 331,337 [1985]; see People v Chavis, 91 NY2d 500, 505 [1998]). As CPL 30.30"contemplates an indication of present readiness" (People v Kendzia, 64 NY2d at337; see People v McCummings, 203 AD2d 656, 657 [1994]), "[t]he relevantinquiry is whether the People have done all that is required of them to bring the case to apoint where it may be tried" (People v Van Hoesen, 12 AD3d 5, 6 [2004], lvdenied 4 NY3d 804 [2005] [internal quotation marks and citation omitted];accord People v England, 84 NY2d 1, 4 [1994]; People v Johnson, 42AD3d at 754).
Here, the record reflects that the People satisfied the statutory requirements by filingand delivering their statement of readiness on January 28, 2011. Contrary to defendant'sassertion, neither the People's decision to seek a superseding indictment (see People v Galloway, 93AD3d 1069, 1070 [2012], lv denied 19 NY3d 996 [2012]) nor theirsubsequent request for an adjournment (see People v Camillo, 279 AD2d 326,326 [2001]; People v Acosta, 249 AD2d 161, 161 [1998], lv denied 92NY2d 892 [1998]; People v Hendrix, 235 AD2d 575, 576-577 [1997]) negatesor renders illusory what otherwise "is presumed to be [an] accurate and truthful"statement of readiness (People v Acosta, 249 AD2d at 161). That said, wenonetheless must consider whether the postreadiness delay occasioned by theadjournment is chargeable to the People.
"Generally, the burden is on the People to establish their entitlement to exclude anyprereadiness delays from the calculation under a CPL 30.30 motion and the burden is ona defendant to prove that any postreadiness delays that directly implicate the People'sability to proceed with trial are chargeable to the People" (People v Robinson, 67 AD3d1042, 1044 [2009], lv denied 13 NY3d 910 [2009]). However, where thePeople have requested an adjournment, "it is the People's burden to ensure, in the firstinstance, that the record of the proceedings at which the adjournment was actuallygranted is sufficiently clear to enable the court considering the subsequent CPL 30.30motion to make an informed decision as to whether the People should be charged"(People v Daniels, 217 AD2d 448, 455 [1995], appeal dismissed [*3]88 NY2d 917 [1996]; see People v Stirrup, 91NY2d 434, 440 [1998]; People v Liotta, 79 NY2d 841, 843 [1992]; People vRobinson, 67 AD3d at 1044). The People failed to discharge that burden here. Thecalendar call at which the adjournment was granted was not transcribed and, although thePeople are only chargeable with the length of the adjournment actually requested (see People v Williams, 32AD3d 403, 404-405 [2006], lv denied 7 NY3d 905 [2006])—asopposed to the length of the adjournment ultimately granted—the record does notestablish the length of the adjournment requested by the People. Accordingly, we haveno choice but to charge the People with the entire 21 days occasioned by theadjournment, which brings them beyond the seven days remaining on the speedy trialclock. To the extent that County Court concluded that defendant "tacitly" consented tothis delay, the case law makes clear that a defendant's "consent to an adjournment mustbe clearly expressed by the defendant or defense counsel to relieve the People of theresponsibility for that portion of the delay" (People v Liotta, 79 NY2d at 843;see People v Smith, 82 NY2d 676, 678 [1993]; People v Smith, 110 AD3d1141, 1143 [2013]). Notably, "[d]efense counsel's failure to object to theadjournment . . . does not constitute consent" (People v Smith, 82NY2d at 678). We therefore conclude that defendant is entitled to dismissal of theindictment pursuant to CPL 30.30.[FN*]
Peters, P.J., Lahtinen and Stein, JJ., concur. Ordered that the judgment is reversed,on the law, and indictment dismissed.
Footnote *: In reaching this result,we note that the People do not assert—and the record does not otherwisereflect—the presence of any "exceptional circumstances" (CPL 30.30 [4] [g]) thatwould render the time period at issue excludable. "Although [t]here is no precisedefinition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g), theCourt of Appeals has ruled that application of this exclusion is permitted only when thePeople for practical reasons beyond their control cannot proceed with a legally viableprosecution" (People vSeamans, 85 AD3d 1398, 1400 [2011] [internal quotation marks and citationsomitted]; see People vPrice, 14 NY3d 61, 64 [2010]). Examples of exceptional circumstances includethe unavailability of a prosecution witness when the witness in question is ill (see People v Alcequier, 15AD3d 162, 163 [2005], lv denied 4 NY3d 851 [2005]), has been deployedfor military service (see Peoplev Chardon, 83 AD3d 954, 955 [2011], lv denied 18 NY3d 857 [2011]),unexpectedly leaves the country (see People v Morgan, 259 AD2d 771, 772[1999], lv denied 93 NY2d 975 [1999]) or experiences a sudden change of heartand refuses to testify (see People v Lashway, 187 AD2d 747, 749 [1992], lvdenied 81 NY2d 842 [1993]), or where the delay was occasioned while awaiting theresults of court-ordered DNA testing (see People v Robinson, 47 AD3d 847, 847-848 [2008],lv denied 10 NY3d 869 [2008]) or because the matter had been reassigned to fivedifferent trial courts (see People v Beckett, 215 AD2d 930, 932 [1995]). Here,however, the People's witness—the victim—was not shown to beunavailable; rather, the People simply desired additional time to prepare her testimony.