People v. Richardson

• Decision Date: 04 March 2021
• Docket Number: Case No. 2014-2099,13274,Ind. No. 211/11
• Citation: 142 N.Y.S.3d 539,192 A.D.3d 432
• Parties: The PEOPLE of the State of New York, Respondent, v. James RICHARDSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 432
142 N.Y.S.3d 539

The PEOPLE of the State of New York, Respondent,
v.
James RICHARDSON, Defendant–Appellant.

13274
Ind. No. 211/11
Case No. 2014-2099

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

ENTERED: March 4, 2021

142 N.Y.S.3d 540

Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Holwell Shuster & Goldberg LLP, New York (Daniel M. Horowitz of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell–Urban of counsel), for respondent.

Renwick, J.P., Kennedy, Scarpulla, Shulman, JJ.

Judgment, Supreme Court, New York County (Charles H. Solomon, J. at speedy trial motions; Arlene D. Goldberg, J. at jury trial and sentencing), rendered July 29, 2013, convicting defendant of attempted assault in the first degree, assault in the second degree, attempted robbery in the first degree (two counts), attempted robbery in the second degree, and criminal possession of a weapon in the second degree (two counts), and sentencing him, as a second violent felony offender, to an aggregate term of 12 years, unanimously affirmed.

The court properly denied defendant's speedy trial motions. The People's December 17, 2012 certificate of readiness "is presumed truthful and accurate and ... a defendant who challenges such a statement must demonstrate that it is illusory" ( People v. Brown, 28 N.Y.3d 392, 405, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ). The record shows that the People previously answered not ready on calendar calls, and had stated they were having "witness issues" when they could not locate the victim. When they still had not located the victim by December 2012, and the speedy trial clock was close to running out, the People made a permissible change of strategy by declaring that they were nevertheless ready to proceed. On the facts presented, the People could have opted to proceed without the victim by introducing defendant's recorded phone calls admitting to the shooting, a security videotape and medical records, which would have established the requisite minimal prima facie case required to answer ready (see People v. Zale, 137 A.D.3d 634, 28 N.Y.S.3d 360 [1st Dept. 2016], lv denied 27 N.Y.3d 1141, 39 N.Y.S.3d 124, 61 N.E.3d 523 [2016] ).

The motion court correctly excluded, under CPL 30.30(4)(a), time occasioned by the People's January 2013 Sirois application seeking to introduce the victim's out-of-court statements on the ground that defendant had caused the victim's unavailability. That application was not frivolous or a sham, because the People had, at least, a good faith basis to believe that defendant had caused third parties to threaten or influence the victim not to...