| People v Cox |
| 2018 NY Slip Op 03698 [161 AD3d 1100] |
| May 23, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Troy Cox, Appellant. |
Paul Skip Laisure, New York, NY (Cynthia Colt of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Eric C. Washer of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C.Holder, J.), rendered February 11, 2015, convicting him of criminal possession of a weapon inthe second degree and criminal possession of a weapon in the third degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied both of hismotions to dismiss the indictment, which motions were made on the ground that he was deprivedof his statutory right to a speedy trial pursuant to CPL 30.30 (1) (a). Where a defendant ischarged with a felony, the People must be ready for trial within six months of the commencementof the criminal action, not including excludable periods (see CPL 30.30 [1] [a]; People v Murray, 154 AD3d 881,882 [2017]; People v Price, 61AD3d 127, 129 [2009], affd 14 NY3d 61 [2010]). Here, the statutory period was 184days, which commenced with the filing of the felony complaint on July 29, 2012 (seeCPL 1.20 [17]).
The People should have been charged with 18 days for the period between July 29, 2012, andAugust 16, 2012. Although the People contended that they mailed a certificate of readiness todefense counsel on August 10, 2012, there was no showing that they filed it with the SupremeCourt. Therefore, the entire 18-day period was chargeable to the People (see People vKendzia, 64 NY2d 331, 337 [1985]; see also People v Titus, 95 AD3d 1042, 1043 [2012]; cf. People v Myles, 26 AD3d 446,447 [2006]).
With respect to the period between October 31, 2012, and November 14, 2012, it was thedefendant's duty, either in his initial motion papers or in a reply, to draw the Supreme Court'sattention to this period that he now claims should have been chargeable to the People (see People v Beasley, 16 NY3d289, 292 [2011]). Since the defendant failed to do so, this claim is unpreserved for appellatereview (see CPL 470.05 [2]; People v Beasley, 16 NY3d at 292; People v Henderson, 120 AD3d1258, 1259 [2014], affd 28 NY3d 63 [2016]), and, in any event, the claim is withoutmerit.
The Supreme Court also properly excluded the period of time between September 24, 2013,and October 22, 2013, attributable to an adjournment granted on the ground that defense [*2]counsel was engaged on another case (see People v Brown, 149 AD3d584, 584 [2017]; People v Brown, 207 AD2d 556, 557 [1994]), notwithstanding thePeople's own lack of readiness (see People v Brown, 149 AD3d at 584; People vMannino, 306 AD2d 157, 158 [2003]).
Accordingly, less than 184 days were chargeable to the People. Further, the defendant failedto meet his burden of demonstrating that the People's statement of readiness was illusory (see People v Brown, 28 NY3d392, 404 [2016]; People vMcCarthy, 146 AD3d 983, 983 [2017]). Therefore, the defendant's motions to dismissthe indictment based upon alleged violations of his statutory right to a speedy trial were properlydenied (see People v Murray, 154AD3d 881 [2017]; People v Price, 61 AD3d at 129).
The People's motion to compel the defendant to submit to a buccal swab for DNA testingwas untimely pursuant to CPL 240.90. The People failed to explain the delay. However, the factthat the motion was untimely made does not mean that the admission of the evidence derivedtherefrom requires reversal, since the error did not implicate the defendant's constitutional rights(see People v Patterson, 78 NY2d 711, 716-717 [1991]; People v Vieweg, 155 AD3d 1305[2017]; People v Beckham, 142AD3d 556 [2016]; People vLewis, 44 AD3d 422, 422-423 [2007]; People v Finkle, 192 AD2d 783, 788[1993]). Rivera, J.P., Miller, Hinds-Radix and Maltese, JJ., concur.