| People v Abdullah |
| 2015 NY Slip Op 08010 [133 AD3d 925] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRamal B. Abdullah, Appellant. |
Steven C. Buitron, Syracuse, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Broome County (Cawley,J.), rendered November 20, 2013, upon two verdicts convicting defendant of the crimesof criminal possession of a controlled substance in the fifth degree, criminal possessionof a controlled substance in the seventh degree, resisting arrest and aggravatedunlicensed operation of a motor vehicle in the third degree (two counts).
In April 2012, defendant was charged by a multicount indictment with variouscrimes stemming from a series of encounters with police in December 2010, March2011, April 2011 and October 2011. Defendant thereafter made multiple motions todismiss the indictment on speedy trial grounds and alternatively moved for, among otherthings, severance from the remaining charges of two counts of criminal possession of acontrolled substance arising from his April 2011 arrest. County Court partially granteddefendant's first speedy trial motion, dismissing two counts of the indictment stemmingfrom the December 2010 and March 2011 incidents, and otherwise denied his remainingmotions relevant to this appeal. A series of jury trials and resulting mistrials followedresulting in partial verdicts convicting defendant of criminal possession of a controlledsubstance in the fifth degree, criminal possession of a controlled substance in the seventhdegree, resisting arrest and aggravated unlicensed operation of a motor vehicle in thethird degree (two counts). Defendant was then sentenced, and he now appeals.
We cannot agree with defendant's contention that the People violated his statutoryright to a speedy trial. Where, as here, a defendant is indicted on multiple charges, at leastone of [*2]which is a felony, CPL 30.30 (1) (a) requiresthe People to declare their readiness for trial within six months of the commencement ofthe criminal action, which is marked by the filing of the first accusatory instrument(see CPL 1.20 [16], [17]; People v Cooper, 98 NY2d 541, 543 [2002]; People v Lowman, 103 AD3d976, 976-977 [2013]). To determine whether the People timely declared readiness,courts must "compute[ ] the time elapsed between the filing of the first accusatoryinstrument and the People's declaration of readiness, subtract[ ] any periods of delay thatare excludable under the terms of the statute and then add[ ] to the result anypostreadiness periods of delay that are actually attributable to the People and areineligible for an exclusion" (People v Manchester, 123 AD3d 1285, 1286 [2014], lvdenied 26 NY3d 931 [2015] [internal quotation marks and citations omitted]; seePeople v Carter, 91 NY2d 795, 798-799 [1998]).
Defendant was indicted on April 20, 2012 and the People declared their readiness fortrial the same day. As relevant here, the indictment contained charges from two separatecriminal actions, the earliest of which was commenced by the filing of a felony complainton April 2, 2011. The People concede that they are chargeable for a prereadiness delay of151 days between the filing of the complaint and a hearing scheduled for August 31,2011. Defendant did not appear at that hearing, however, prompting his counsel torequest an adjournment, which was granted. At the next court appearance, on September28, 2011, defendant was present, but he again was granted, at his counsel's request, aone-week adjournment to pursue further plea negotiations. In light of the fact that theforegoing delays were the result of adjournments "granted by the court at the request of,or with the consent of, . . . defendant or his counsel" (CPL 30.30 [4] [b];see People v Kopciowski, 68 NY2d 615, 616-617 [1986]; People vManchester, 123 AD3d at 1286-1287), the time period between August 31, 2011 andOctober 5, 2011 is not chargeable to the People.
On October 5, 2011, still unable to reach a plea agreement, defendant explicitlywaived his speedy trial rights in open court to allow for more time to negotiate. OnNovember 9, 2011, defense counsel informed the court that defendant had been arrestedagain on October 31, 2011 and that he was engaged in ongoing discussions with thePeople in an effort to "reach a global resolution." Between that time and April 20, 2012,the date on which defendant was indicted and the People declared their readiness fortrial, negotiations apparently continued, as nothing in the record indicates that defendantever rescinded his waiver. Thus, because "defendant[ ] . . . explicitly waived[his] speedy trial rights in order to complete ongoing plea negotiations," the time periodbetween October 5, 2011 and April 20, 2012 is also excludable (People v Waldron, 6 NY3d463, 467 [2006]; see Peoplev Garcia, 33 AD3d 1050, 1052 [2006], lv denied 9 NY3d 844 [2007];People v Dougal, 266 AD2d 574, 576 [1999], lv denied 94 NY2d 879[2000]).
As for defendant's allegations of postreadiness delays attributable to the People, wenote that County Court originally scheduled defendant's trial to begin on November 26,2012, but later rescheduled it for April 15, 2013 due to defendant's request for anadjournment, making this period of delay almost entirely attributable to defendant(see People v Simmons, 252 AD2d 825, 826 [1998]). While defendant correctlycontends that the People were granted two postreadiness adjournments—totaling11 days—during the same time period, even if we were to assume that "the causeof the[se] delay[s] directly implicate[d] the People's ability to proceed with trial"(People v Cortes, 80 NY2d 201, 210 [1992]; see People v Dushain, 239AD2d 151, 153 [1997], lv denied 91 NY2d 1007 [1998]), and are, therefore,chargeable to the People, their declaration of readiness would still be timely pursuant tothe requirements of CPL 30.30 (1) (a). Thus, defendant was not denied his statutory rightto a speedy trial. Furthermore, upon consideration of the factors enunciated in Peoplev Taranovich (37 NY2d 442, 445 [1975]), we find no constitutional speedy trialviolation (see People vMercer, 105 AD3d 1091, 1093 [2013], lv denied 21 NY3d 1017 [2013];People v Pitt, 43 AD3d1248, 1249 [2007], lv denied 9 NY3d [*3]1008 [2007]).
Nor can we agree with defendant's argument that County Court erred in denying hismotion to sever the two counts charging him with criminal possession of a controlledsubstance from the remainder of the indictment. Where, as here, offenses arise fromseparate criminal transactions, they are nonetheless joinable in a single indictment if,among other things, "proof of the first offense would be material and admissible asevidence in chief upon a trial of the second" (CPL 200.20 [2] [b]; see People v McCloud, 121AD3d 1286, 1288-1289 [2014], lv denied 25 NY3d 1167 [2015]). On theoccasion of each of the two separate criminal transactions here, defendant was operatingwith a suspended driver's license, which led to separate, additional charges of aggravatedunlicensed operation of a motor vehicle in the third degree (hereinafter AUO). Inasmuchas evidence of the April 2011 AUO charge would be material and admissible in a trial onthe October 2011 AUO charge (see Vehicle and Traffic Law § 511[1]), those two charges were properly joined. Further, the drug possession charges wereproperly joined with the AUO charge that arose out of the same criminal transaction(see CPL 200.20 [2] [a]). Because the offenses were properly joined pursuant toCPL 200.20 (2) (a) and (b), "the court lacked statutory authority to sever [them]"(People v Bongarzone, 69 NY2d 892, 895 [1987]; see CPL 200.20[3]).
Defendant's remaining claim of "malicious prosecution" is without merit.
Peters, P.J., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.