People v. Chardon

• Decision Date: 19 April 2011
• Parties: The PEOPLE, etc., respondent,v.Qasim CHARDON, appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 954
922 N.Y.S.2d 127
2011 N.Y. Slip Op. 03257

The PEOPLE, etc., respondent,
v.
Qasim CHARDON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 19, 2011.

[922 N.Y.S.2d 128]

Lynn W.L. Fahey, New York, N.Y., for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman, and Diane R. Eisner of counsel), for respondent.PETER B. SKELOS, J.P., RANDALL T. ENG, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.

[83 A.D.3d 954] Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered January 10, 2006, convicting him of assault in the first degree and gang assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the facts, by vacating the conviction of assault in the first degree under count three of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The Supreme Court properly denied that branch of the defendant's motion which was to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial ( see CPL 30.30). A motion to dismiss an indictment pursuant to CPL 30.30(1)(a) must be granted where the People are not ready for trial within six months of the commencement of a felony criminal action ( see CPL 30.30[1][a], 210.20[1][g] ). Once the accused has established the existence of a delay exceeding six months, the burden is upon the prosecution to prove that certain periods of time should be excluded in computing the time within which the People must be ready for trial ( see CPL 30.30[4]; People v. Meyers, 114 A.D.2d 861, 862, 494 N.Y.S.2d 897). Among the periods of time that are excludable upon sufficient proof are “periods of delay occasioned by exceptional circumstances” (CPL 30.30[4][g]; see People v. Figaro, 245 A.D.2d 300, 667 N.Y.S.2d 372).

The Supreme Court determined that the People were [83 A.D.3d 955] chargeable with 154 days, which was less than the 184 days permitted. The criminal action was commenced on July 8, 2004, with the filing of an indictment, and the People announced their readiness for trial on August 23, 2005. The time between July 13, 2004, and July 20, 2004, was excludable as a reasonable delay resulting from pretrial motions ( see CPL 30.30[4][a]; People v. Wells, 16 A.D.3d 174, 791 N.Y.S.2d 34;

[922 N.Y.S.2d 129]

People v. Ailes, 268 A.D.2d 370, 700 N.Y.S.2d 831). The defendant does not challenge the Supreme Court's determination that the period of time between August 3, 2004, and January 31, 2005, was excludable. Although the Supreme Court concluded that the People should be charged with the entire period of time between January 31, 2005, and June 8, 2005, the People established that the period of time between January 31, 2005, and April 13, 2005, and a subsequent period between June 8, 2005, and July 7, 2005, were attributable to exceptional circumstances and, therefore, excludable pursuant to CPL 30.30(4)(g), since the complainant was deployed for military service in Korea ( see People v. Williams, 293 A.D.2d 557, 557–558, 739 N.Y.S.2d 846; People v. Grady, 111 A.D.2d 932, 491 N.Y.S.2d 41). Finally, the People established that the period of time between July 21, 2005, and August 23, 2005, was excludable based on their diligent efforts to make the complainant available ( see People v. Zirpola, 57 N.Y.2d 706, 708, 454 N.Y.S.2d 702, 440 N.E.2d 787; People v. Washington, 43 N.Y.2d 772, 774, 401 N.Y.S.2d 1007, 372 N.E.2d 795). In light of the foregoing, the defendant was not entitled to dismissal of the indictment on statutory speedy trial grounds because the delay attributable to the People did not exceed the statutory time limit ( see People v. Lindsey, 52 A.D.3d 527, 530, 859 N.Y.S.2d 486).

The Supreme Court erred in denying the defendant's request for a missing witness charge. The defendant made a prima facie showing that the witness, a police officer who spoke to the complainant...