People v. Cox

• Citation: 161 A.D.3d 1100,77 N.Y.S.3d 455
• Decision Date: 23 May 2018
• Docket Number: 2015–01514,Ind. No. 2091/12
• Parties: The PEOPLE, etc., respondent, v. Troy COX, appellant.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1100

77 N.Y.S.3d 455

The PEOPLE, etc., respondent,

v.Troy COX, appellant.

2015–01514

Ind. No. 2091/12

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

Argued—January 30, 2018

May 23, 2018

Paul Skip Laisure, New York, N.Y. (Cynthia Colt of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Eric C. Washer of counsel), for respondent.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

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 in the 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 his motions to dismiss the indictment, which motions were made on the ground that he was deprived of his statutory right to a speedy trial pursuant to CPL 30.30(1)(a). Where a defendant is charged with a felony, the People must be ready for trial within six months of the commencement of the criminal action, not including excludable periods (see CPL 30.30[1][a] ; People v. Murray, 154 A.D.3d 881, 882, 63 N.Y.S.3d 82 ; People v. Price, 61 A.D.3d 127, 129, 873 N.Y.S.2d 327, affd 14 N.Y.3d 61, 896 N.Y.S.2d 719, 923 N.E.2d 1107 ). Here, the statutory period was 184 days, which commenced with the filing of the felony complaint on July 29, 2012 (see CPL 1.20[17] ).

The People should have been charged with 18 days for the period between July 29, 2012, and August 16, 2012. Although the People contended that they mailed a certificate of readiness to defense counsel on August 10, 2012, there was no showing that they filed it with the Supreme Court. Therefore, the entire 18–day period was chargeable to the People (see People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 ; see also People v. Titus, 95 A.D.3d 1042, 1043, 945 N.Y.S.2d 323 ; cf. People v. Myles, 26 A.D.3d 446, 447, 809 N.Y.S.2d 209 ).

With respect to the period between October 31, 2012, and November 14, 2012, it was the defendant's duty, either in his initial motion papers or in a reply, to draw the Supreme Court's attention to this period that he now claims should have been chargeable to the People (see People v. Beasley, 16 N.Y.3d 289, 292, 921 N.Y.S.2d 178, 946 N.E.2d 166 ). Since the defendant failed to do so, this claim is unpreserved for appellate review (see CPL 470.05[2] ; People v. Beasley, 16 N.Y.3d at 292, 921 N.Y.S.2d 178, 946 N.E.2d 166 ; People v. Henderson, 120 A.D.3d 1258, 1259, 992 N.Y.S.2d 140, affd 28 N.Y.3d 63, 41 N.Y.S.3d 464, 64 N.E.3d 284 ), and, in any event, the claim is without merit.

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 counsel was engaged on another case (see People v. Brown, 149 A.D.3d 584, 584, 53 N.Y.S.3d 626 ; People v. Brown, 207 A.D.2d 556, 557, 616 N.Y.S.2d 389 ), notwithstanding the People's own lack of readiness (see People v. Brown, 149 A.D.3d at 584, 53 N.Y.S.3d 626 ; People v. Mannino, 306 A.D.2d 157, 158, 761 N.Y.S.2d 189 ).

Accordingly, less than 184 days were chargeable to the People. Further, the defendant failed to meet his burden of demonstrating that the People's statement of readiness was illusory (see People v. Brown, 28 N.Y.3d 392, 404, 45 N.Y.S.3d 320, 68 N.E.3d 45 ; People v. McCarthy, 146 A.D.3d 983, 983, 47 N.Y.S.3d 41 ). Therefore, the defendant's motions to dismiss the indictment based upon alleged violations of his statutory right to a speedy trial were properly denied (see People v. Murray, 154 A.D.3d 881, 63 N.Y.S.3d 82 ; People v. Price, 61 A.D.3d at 129, 873 N.Y.S.2d 327 ).

The People's motion to compel the defendant to submit to a buccal swab for DNA testing was untimely pursuant to CPL 240.90. The People failed to explain the delay. However, the fact that the motion was untimely made does not mean that the admission of the evidence derived therefrom requires reversal, since the error did not implicate the defendant's...