People v. Garrett

• Decision Date: 30 September 1994
• Citation: 207 A.D.2d 948,617 N.Y.S.2d 78
• Parties: PEOPLE of the State of New York, Respondent, v. Michael D. GARRETT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 78

617 N.Y.S.2d 78

207 A.D.2d 948

PEOPLE of the State of New York, Respondent, v. Michael D. GARRETT, Appellant.

Supreme Court, Appellate Division Fourth Department.

Sept. 30, 1994.

John Cirando, Syracuse, for appellant.

James G. Grose by Spencer Ludington, Oswego, for respondent.

Before GREEN, J.P., and LAWTON, FALLON, DOERR and BOEHM, JJ.

MEMORANDUM:

There is no merit to the contention that defendant was denied his statutory right to a speedy trial. A felony complaint was lodged against defendant on September 19, 1991; an indictment was filed on January 3, 1992, and the People announced their readiness for trial on January 17, 1992. Defendant contends that the indictment should have been dismissed because postreadiness delay chargeable to the People, resulting from defendant's detention in another jurisdiction, when added to the time chargeable to the People before their statement of readiness, exceeded six months (see, CPL 30.30[1]; People v. Anderson, 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231). The record establishes that the District Attorney made diligent efforts to secure the presence of defendant, who was in Federal prison. Thus, the period from February 18, 1992, to June 5, 1992, is not chargeable to the People and, therefore, County Court properly denied defendant's motion to dismiss (see, CPL 30.30[4][e]; People v. Parker, 186 A.D.2d 593, 588 N.Y.S.2d 390, lv. denied 81 N.Y.2d 845, 595 N.Y.S.2d 744, 611 N.E.2d 783; People v. Smith, 138 A.D.2d 972, 526 N.Y.S.2d 303, affd.73 N.Y.2d 961, 540 N.Y.S.2d 987, 538 N.E.2d 339; People v. Leftwich, 126 A.D.2d 748, 511 N.Y.S.2d 138; see also, People v. Jones, 105 A.D.2d 179, 186, 483 N.Y.S.2d 345, affd. 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231).

We agree with defendant, however, that reversal is mandated by the court's incorrect instruction to the jury that reasonable doubt must be based "entirely and absolutely on some good substantial reason" and that the People had to establish defendant's guilt "to a reasonable degree of certainty" (see, People v. Bradley, 201 A.D.2d 914, 610 N.Y.S.2d 901; People v. Sosby, 197 A.D.2d 909, 602 N.Y.S.2d 455; People v. Grant, 197 A.D.2d 910, 602 N.Y.S.2d 585, lv. denied 82 N.Y.2d 895, 610 N.Y.S.2d 162, 632 N.E.2d 472; People v. Sneed, 193 A.D.2d 1139, 598 N.Y.S.2d 624, lv. denied 82 N.Y.2d 759, 603 N.Y.S.2d 1001, 624 N.E.2d 187).

Defendant also contends that the court erred in determining as a matter of law that he admitted the previous conviction set forth in the prosecutor's special information filed pursuant to CPL 200.60 by voluntarily absenting himself from the trial. Although the court could arraign defendant on the special information in absentia, his absence does not constitute an admission to the...