People v. McCummings
| Decision Date | 14 April 1994 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Warren D. McCUMMINGS Jr., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert M. O'Leary, Public Defender (Kenneth S. Kagan, of counsel), Binghamton, for appellant.
Gerald F. Mollen, Dist. Atty. (Joann Rose Parry, of counsel), Binghamton, for respondent.
Before MIKOLL, J.P., and CREW, CASEY, YESAWICH and PETERS, JJ.
Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered February 11, 1992, upon a verdict convicting defendant of the crime of assault in the second degree.
On January 10, 1991, a felony complaint was filed by the People charging defendant with the crime of assault in the second degree arising out of an altercation with a fellow inmate while defendant was confined in the Broome County Jail awaiting trial on an unrelated sexual abuse charge. On February 1, 1991 defendant was indicted for the assault, and on February 6, 1991 the People filed a statement of readiness for trial. On March 14, 1991, defendant was convicted of the crime of sexual abuse in the first degree. At that time defendant requested new counsel on the assault charge, and on April 23, 1991 County Court assigned new counsel. On October 21, 1991, County Court scheduled the instant case for trial on October 29, 1991. On the day of trial defendant sought an adjournment in order that a witness could be located; County Court adjourned the case to January 13, 1992, its next available trial date. Defendant was thereafter tried and convicted of assault in the second degree for which he was sentenced as a second felony offender to 2 1/2 to 5 years' imprisonment.
On this appeal defendant contends that there should be a reversal because his statutory and constitutional rights to a speedy trial were violated. It appears from the record that in August 1991 the People were experiencing difficulty locating the victim of the assault and did not locate him until one week prior to the scheduled trial date. Defendant argues that the People's inability to locate their witness in August 1991 demonstrates that they were not ready for trial at the time they filed their statement of readiness. We disagree. Present readiness for trial is established when the People file a valid accusatory instrument, where the defendant has been produced for trial on that instrument and where the People have complied with all proceedings required to be decided before the trial can commence (see, People v. Caussade, 162 A.D.2d 4, 8, 560 N.Y.S.2d 648, lv. denied 76 N.Y.2d 984, 563 N.Y.S.2d 772, 565 N.E.2d 521). There are no allegations that the People in any way failed to comply with these prerequisites. Moreover, defendant has not demonstrated that the People's inability to locate their witness in August 1991 constituted an impediment to the trial's commencement on October 29, 1991 (see, People v. McKenna, 76 N.Y.2d 59, 64, 556 N.Y.S.2d 514, 555 N.E.2d 911).
With regard to defendant's contention that his constitutional right to a speedy trial was violated, we note that the delay was not extensive and resulted from a combination of calendar congestion and his own request to locate a witness, that his pretrial incarceration was due to another sentence that he was serving (see, People v. Davis, 197 A.D.2d 375, 602 N.Y.S.2d 363) and that he has not demonstrated that he was prejudiced by the delay (see, People v. Moss, 188 A.D.2d 620, 591 N.Y.S.2d 499, lv. denied 81 N.Y.2d 890, 597 N.Y.S.2d 951, 613 N.E.2d 983). Accordingly, we find neither a statutory nor constitutional violation of defendant's right to a speedy trial.
We find persuasive, however, defendant's contention that there was insufficient proof to establish the element of physical injury necessary to sustain his conviction for assault in the...
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