People v. Brye
| Decision Date | 27 November 1996 |
| Citation | 650 N.Y.S.2d 382,233 A.D.2d 775 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Rodney BRYE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Carl J. Silverstein, Monticello, for appellant.
Edward G. Cloke, District Attorney, Catskill, for respondent.
Before MIKOLL, J.P., and CREW, WHITE, CASEY and YESAWICH, JJ.
Appeal from a judgment of the County Court of Greene County (Battisti, J.), rendered December 13, 1994, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree, promoting prison contraband in the first degree and assault in the second degree (two counts).
As a result of an altercation at Coxsackie Correctional Facility in Greene County on April 1, 1993, defendant was charged in a five-count indictment with criminal possession of a weapon in the third degree, promoting prison contraband in the first degree and three counts of assault in the second degree. He was subsequently convicted by a jury of all charges except one count of assault in the second degree, which was dismissed by County Court, and was sentenced as a second felony offender to a term of imprisonment of 2 1/2 to 5 years on each count, to be served concurrently. In this appeal defendant contends, inter alia, that he was denied his right to a speedy trial in violation of CPL 30.30, that his conviction violated the double jeopardy clause and that the verdict was against the weight of the evidence.
As to the speedy trial question, we note that a sealed indictment dated June 24, 1993 was returned by the Grand Jury and a ready for trial notice dated July 15, 1993 was sent to the Public Defender's office by the District Attorney. Defendant was arraigned on July 27, 1993, at which time the Public Defender was present and formally assigned to the case. The case was brought to trial on October 17, 1994, but just prior to jury selection defendant's attorney made an oral motion to dismiss the indictment based on CPL 30.30. Although this motion was not made in writing as required by CPL 210.45, the District Attorney's failure to object at the time of the motion resulted in a waiver by the prosecution of the written notice requirement and the issue is thus before us (see, People v. Jennings, 69 N.Y.2d 103, 113, 512 N.Y.S.2d 652, 504 N.E.2d 1079).
Defense counsel, in a brief colloquy, did not specify any delays which should be charged to the People and merely questioned whether the People were ready to proceed when they filed their statement of readiness. In response, the District Attorney stated that the People had announced their readiness for trial at the time of arraignment and had remained ready for trial ever since. These statements were not contradicted by the defense and County Court denied defendant's motion. Defendant now contends that the notice of readiness was a nullity since it was filed prior to the arraignment. However, as defendant was arraigned well within the six-month statutory time period, we find the statement of readiness to be valid (see, People v. McGrath, 223 A.D.2d 759, 760, 636 N.Y.S.2d 438, 439), and since the record is barren of any delay chargeable to the prosecution in bringing this case to trial, we find no violation of defendant's right to a speedy trial pursuant to CPL 30.30.
Defendant further contends that his conviction should...
To continue reading
Request your trial
-
People v. Livingston
...clearly constitutes dangerous contraband, and defendant does not argue otherwise (see, Penal Law § 205.00; see also, People v. Brye, 233 A.D.2d 775, 650 N.Y.S.2d 382, lv. denied 89 N.Y.2d 1009, 658 N.Y.S.2d 248, 680 N.E.2d 622; People v. Denny, 199 A.D.2d 686, 605 N.Y.S.2d 164, lv. denied 8......
-
People v. Mamadou
...a weapon during the altercation with the victim (see People v. Johnson, 24 A.D.3d 803, 803–804, 806 N.Y.S.2d 251 [2005] ; People v. Brye, 233 A.D.2d 775, 776–777, 650 N.Y.S.2d 382 [1996], lv denied 89 N.Y.2d 1009, 658 N.Y.S.2d 248, 680 N.E.2d 622 [1997] ). Although defendant denied having a......
-
People v. Knight
...requirements of CPL 210.45(1)" ( People v. Jennings, 69 N.Y.2d at 113, 512 N.Y.S.2d 652, 504 N.E.2d 1079 ; see e.g. People v. Brye, 233 A.D.2d 775, 776, 650 N.Y.S.2d 382 [1996] ; People v. Cook, 193 A.D.2d 366, 369–370, 596 N.Y.S.2d 822 [1993] ; People v. Parikh, 31 Misc.3d 152[A], 2011 N.Y......
-
People v. Reynolds
...92 N.Y.2d 926), we further conclude that the verdict is not against the weight of the evidence (see, People v Burns, supra; People v Brye, 233 A.D.2d 775, 777, lv denied 89 N.Y.2d We turn next to defendant's contention that County Court abused its discretion in ruling that the People would ......