People v. David

• Decision Date: 17 September 1998
• Parties: , 1998 N.Y. Slip Op. 7902 The PEOPLE of the State of New York, Appellant, v. Rodney DAVID, Defendant-Respondent. The PEOPLE of the State of New York, Appellant, v. Patrick McDOWELL, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 354

679 N.Y.S.2d 354

253 A.D.2d 642, 1998 N.Y. Slip Op. 7902

The PEOPLE of the State of New York, Appellant, v. Rodney DAVID, Defendant-Respondent.

The PEOPLE of the State of New York, Appellant, v. Patrick McDOWELL, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Sept. 17, 1998.

Gina Mignola, for the People.

David Touger, for Rodney David.

Francis P. Karam, for Patrick McDowell.

Before MILONAS, J.P., and WALLACH, TOM, MAZZARELLI and SAXE, JJ.

MEMORANDUM DECISION.

Orders, Supreme Court, New York County (Budd Goodman, J.), entered March 1, 1996 and June 6, 1996, which granted each defendant's motion to dismiss the indictment, charging them with attempted murder in the second degree and related crimes, pursuant to CPL 30.30, and a third order, same court and Justice, entered March 1, 1996, which granted defendant McDowell's motion to dismiss the indictment, separately charging him with criminal possession of a weapon in the second and third degrees, pursuant to CPL 30.30, unanimously reversed, on the law and the facts, the motions to dismiss denied and the indictments reinstated.

By Indictment No. 7260/94, both defendants were charged with a gunpoint robbery during which David's gun misfired twice when he pulled the trigger, and McDowell pistol-whipped one of the victims. By Indictment No. 7255/94, McDowell was separately charged in connection with his gunpoint encounter with one of the victims the day after the robbery. Felony complaints were filed on July 30, 1994, and the indictments were filed on August 8, 1994.

By order dated May 15, 1995, the People's motion to consolidate the two indictments was granted with respect to the suppression hearings and denied with respect to trial. Following the suppression hearings in August 1995, the motions to suppress were denied by written decision dated September 28, 1995 (Herbert Altman, J.).

The People filed a Certificate of Readiness on November 17, 1995 as to both indictments, as well as to an unrelated murder indictment against McDowell. However, McDowell had already moved on October 16, 1995 to dismiss Indictment No. 7255/94 on speedy-trial grounds, and he moved to dismiss Indictment No. 7260/94 on the same grounds on November 27, 1995. David made a similar motion on March 6, 1996.

The six-month period within which the People were obligated to be ready for trial pursuant to CPL 30.30(1)(a) commenced on July 30, 1994 with the filing of the felony complaints against the two defendants (People v. Sinistaj, 67 N.Y.2d 236, 501 N.Y.S.2d 793, 492 N.E.2d 1209) and consisted of 184 days, not counting any delays excludable under CPL 30.30(4).

With respect to Indictment No. 7255/94, the court concluded that the People were responsible for 213 days of delay, of which we conclude that 39 days were improperly found to be includable. Thus, the People were responsible for only 174 days, within the permissible 184-day limit. With respect to Indictment No. 7260/94, the court charged the People with 245 days of delay as to McDowell and 199 days as to David. We find that, as to both defendants, the People should only have been charged with 131 days of delay, well within the 184-day period. We turn first to Indictment No. 7255/94 and then to 7260/94 as to each defendant separately, with reference only to the contested periods of delay.

Indictment No. 7255/94 (McDowell only)

At the outset, before turning to the periods that were improperly charged to the People, we note that the 36-day delay from December 12, 1994 to January 17, 1995 was properly charged to the People as in excess of a reasonable time within which to prepare for suppression hearings because including this time would bring the total period of delay for this purpose to two months. While as much as 34 days may be reasonable for this purpose (People v. Silas, 233 A.D.2d 103, 649 N.Y.S.2d 428, lv. denied, 89 N.Y.2d 946, 655 N.Y.S.2d 897, 678 N.E.2d 510), two months, under the circumstances, is not.

Further, with respect to the 22 days charged to the People for the period from January 26, 1995 to February 17, 1995, the People are not entitled to rely on the court's erroneous statement at the time that the entire period at issue was excludable; under People v. Smith, 82 N.Y.2d 676, 601 N.Y.S.2d 466, 619 N.E.2d 403, they are chargeable with the time beyond the date to which they had requested an adjournment, absent defense counsel's express consent or the People's statement of readiness. As the Smith decision notes, it is precisely to avoid the "need for a court to determine to whom adjournment delays should be charged" that the prosecution is required to file a statement of readiness or announce its readiness in open court (id., at 678, 601 N.Y.S.2d 466, 619 N.E.2d 403).

February 17, 1995 to March 10, 1995 (21 days). McDowell's attorney did not appear on February 17th due to illness, although defendant himself appeared. On the 30.30 motion, the court found this time chargeable to the People because they had not announced their readiness and defendant did not consent to the adjournment to March 10th. The People correctly argue that, notwithstanding their unreadiness, they are not chargeable with delay "caused predominantly by defense counsel's absence" (People v. Brown, 195 A.D.2d 310, 311, 600 N.Y.S.2d 53, lv. denied 82 N.Y.2d 891, 610 N.Y.S.2d 158, 632 N.E.2d 468). Such circumstance, we have found, comes within the express provisions of CPL 30.30(4)(f), which excludes periods "during which the defendant is without counsel through no fault of the court" (see, People v. Lassiter, 240 A.D.2d 293, 658 N.Y.S.2d 317).

September 28, 1995 to October 16, 1995 (18 days). On September 28, 1995, the suppression court rendered its decisions denying the motions to suppress. Both sides discussed setting a trial date for this indictment, and October 17, 1995 was set for trial. However, on October 16th, McDowell filed his speedy-trial motion to dismiss this indictment. Although the court determined that the time was chargeable to the People because they had not announced their readiness, this 18-day period constitutes a reasonable amount of time that the People are permitted following the court's decision on the suppression motions to prepare for trial and thus should have been excluded (see, e.g., People v. Roberts, 236 A.D.2d 233, 653 N.Y.S.2d 332, lv. denied, 91 N.Y.2d 836, 667 N.Y.S.2d 690, 690 N.E.2d 499; People v. Chambers, 226 A.D.2d 284, 641 N.Y.S.2d 290, lv. denied 88 N.Y.2d 981, 649 N.Y.S.2d 388, 672 N.E.2d 614). Defendant's claim that in fact the People had the suppression court's decision two weeks earlier is not preserved for review (see, People v. Goode, 87 N.Y.2d 1045, 643 N.Y.S.2d 477, 666 N.E.2d 182), having failed to raise it in his motion, and is also unsupported by the record. In any event, even with the alleged additional two weeks, the total time (32 days) would not be so long as to render it unreasonable (see People v. Heine, 238 A.D.2d 212, 656 N.Y.S.2d 258, lv. denied, 90 N.Y.2d 905, 663 N.Y.S.2d 517, 686 N.E.2d 229).

Without these 39 days that the court erroneously found includable, the 213-day total the court charged to the People is reduced to 174 days, within the permissible 184 days. Accordingly, this indictment should be reinstated.

Indictment No. 7260 (McDowell)

Again, before addressing the delays improperly attributed to the People, we note that the first challenged period of delay, from August 25, 1994 to September 9, 1994 (15 days) was properly excluded by the court. It is generally true, as defendant argues, that time between arraignment and assignment to an IAS part is chargeable to the People (see, People v. Collins, 82 N.Y.2d 177, 604 N.Y.S.2d 11, 624 N.E.2d 139). Here, however, not only is the argument unpreserved, but the matter was adjourned to September 9th for the submission of defendant's pre-trial motions, and the record reflects that defendant's motions were submitted on that date. Under such circumstances, where the record shows than the arraignment court adjourns a case for motion practice, the period is excludable (see, People v. Driver, 248 A.D.2d 172, 670 N.Y.S.2d 422, 423).

October 15, 1994 to October 21, 1994 (6 days). On October 7, 1994, in the absence of McDowell and his attorney, David's counsel represented that the parties had agreed to a schedule whereby the prosecutor would respond to his omnibus motion within a week and that the matter would be adjourned to October 21st. Because the court stated that this was not a good date, the matter was adjourned to November 17th instead. Due to co-counsel's consent to the motion schedule this six-day period should not have been charged to the People; an adjournment granted at the co-defendant's behest is excludable as to defendant as well (see, People v. Vidal, 180 A.D.2d 447, 580 N.Y.S.2d 13, lv. denied 80 N.Y.2d 839, 587 N.Y.S.2d 924, 600 N.E.2d 651).

December 12, 1994 to February 17, 1994 (67 days). On November 17, 1994, co-defendant David's attorney asked to be relieved due to "irreconcilable differences" with his client, who agreed to the request. The case was adjourned as to both defendants for the purpose of securing new counsel for David, but thereafter, on three different adjourned dates (December 12, 1994, January 4, 1995, January 26, 1995), various complications arose (including financial questions concerning his right to court-appointed counsel), and David was effectively without representation until February 17th. During this time, the People did not announce their readiness and McDowell did not consent to any adjournments; accordingly, the court...