| People v McCarthy |
| 2017 NY Slip Op 00487 [146 AD3d 983] |
| January 25, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael McCarthy, Appellant. |
Seymour W. James, Jr., New York, NY (Cheryl P. Williams of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Roni C. Piplani, and Meredith D'Angelo of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Lewis, J.), rendered July 6, 2011, convicting him of assault in the second degree andcriminal possession of a weapon in the fourth degree, after a nonjury trial, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant was arraigned on a felony complaint on September 12, 2009. OnNovember 12, 2009, the People filed a certificate of readiness, but the matter wasadjourned multiple times at the People's request until the defendant filed a motion onDecember 22, 2010, pursuant to CPL 30.30 to dismiss the indictment for violation of hisstatutory right to a speedy trial. The motion was denied without a hearing.
Pursuant to CPL 30.30 (1) (a), the Supreme Court must grant a motion to dismiss anindictment charging a felony offense where the People are not ready for trial within sixmonths after the commencement of the criminal action, which, in this case, consists of aperiod of 181 days. Once the People announce that they are ready for trial, postreadinessdelay is chargeable to them only "when the delay is attributable to their inaction anddirectly implicates their ability to proceed" (People v Carter, 91 NY2d 795, 799[1998]; see People v Anderson, 66 NY2d 529, 534-536 [1985]). Therefore, withrespect to postreadiness delay, in contrast to prereadiness delay, "any period of anadjournment in excess of that actually requested by the People is excluded" (People v Young, 110 AD3d1107, 1107-1108 [2013]; see People v Lynch, 103 AD3d 919, 920 [2013]).
The defendant does not dispute the Supreme Court's conclusion that, applyingpostreadiness rules to the delay that occurred after November 12, 2009, so as to excludeany period of an adjournment in excess of that actually requested by the prosecutor, thePeople were ready within the statutorily prescribed time period. Rather, the defendantchallenges the court's conclusion that postreadiness rules were applicable because, thedefendant contends, the November 12, 2009, statement of readiness was illusory. ThePeople do not dispute that, if they were chargeable with all of the adjourned time underprereadiness rules, they would have exceeded 181 days.
[*2] "To be effective, a statement of readiness must becommunicated . . . at a time when the People are truly ready to proceed"(People v Carter, 91 NY2d at 798; see People v Chavis, 91 NY2d 500,505 [1998]; People v Kendzia, 64 NY2d 331, 337 [1985]). "A statement ofreadiness at a time when the People are not actually ready is illusory and insufficient tostop the running of the speedy trial clock" (People v England, 84 NY2d 1, 4[1994]). The People's statement of readiness is presumed to be correct, "[i]n the absenceof proof that the readiness statement did not accurately reflect the People's position"(People v Carter, 91 NY2d at 799; see People v Caussade, 162 AD2d 4,12 [1990]; see also People vSibblies, 22 NY3d 1174, 1180 [2014, Graffeo, J., concurring]).
Here, there is no evidence in the record that the People's announcement of readinesson November 12, 2009, was not made in good faith or did not reflect an actual presentstate of readiness (see People v Brown, 28 NY3d 392 [2016]; People v Santana, 233 AD2d 344, 345 [1996]; People vTavarez, 147 AD2d 355, 356 [1989]). Accordingly, the Supreme Court properlydenied the defendant's motion.
The defendant also argues that his adjudication as a second violent felony offenderwas improper because when he pleaded guilty to a prior charge of robbery in the seconddegree in Kings County, he was not advised that a period of postrelease supervisionwould be part of the sentence imposed. Accordingly, the defendant argues that his plea ofguilty was not knowingly, voluntarily, and intelligently made, and it could not serve as apredicate violent felony conviction. The record demonstrates that the defendant wasgiven an opportunity to challenge the constitutionality of this prior conviction at the timeof his sentencing, however, he failed to do so. We therefore find that the defendant haswaived his current claim (see CPL 400.15 [7] [b]; People v Odom, 61 AD3d896 [2009]; People vCruz, 56 AD3d 570 [2008]). Balkin, J.P., Hall, Miller and LaSalle, JJ.,concur.