People v. Stiebritz

• Decision Date: 03 March 2021
• Docket Number: 2016-11864,2019-08469,Ind. No. 141/15
• Citation: 192 A.D.3d 705,139 N.Y.S.3d 567 (Mem)
• Parties: The PEOPLE, etc., respondent, v. John STIEBRITZ, appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 705

139 N.Y.S.3d 567 (Mem)

The PEOPLE, etc., respondent,

v.John STIEBRITZ, appellant.

2016-11864

2019-08469

Ind. No. 141/15

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

Submitted—February 11, 2021

March 3, 2021

Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein of counsel), for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Anna K. Diehn of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeals by the defendant (1) from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered October 7, 2016, convicting him of course of sexual conduct against a child in the first degree, upon his plea of guilty, and imposing sentence, and (2), by permission, from an order of the same court dated May 8, 2019, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

ORDERED that the judgment and the order are affirmed.

The defendant pleaded guilty to course of sexual conduct against a child in the first degree and sentence was imposed. The defendant thereafter moved pursuant to CPL 440.10 to vacate the judgment of conviction, asserting, inter alia, that he received ineffective assistance of counsel because his counsel failed to move to dismiss the indictment based upon violation of his statutory speedy trial rights (see CPL 30.30 ). By order dated May 8, 2019, the County Court denied the motion without a hearing. This Court granted the defendant leave to appeal from that order.

Contrary to the defendant's only contention on appeal, he did not receive ineffective assistance of counsel due to trial counsel's failure to move to dismiss the indictment. Where a defendant is charged with a felony, CPL 30.30 requires the People to be ready for trial within six months of the commencement of the criminal action (see CPL 30.30[1][a] ; People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 ). Here, in opposition to the defendant's CPL 440.10 motion, the People demonstrated that the total time chargeable to them did not exceed the statutory time period (see People v. Whelan, 173 A.D.3d 778, 780, 102 N.Y.S.3d 279 ). Further, the defendant failed to meet his burden of demonstrating that the People's filed statement of readiness was illusory (see People v. Brown, 28 N.Y.3d 392, 405–407, 45 N.Y.S.3d 320, 68 N.E.3d 45 ; People v. Whelan, 173 A.D.3d at 780, 102 N.Y.S.3d 279 ; People v. Cox, 161 A.D.3d 1100, 1101, 77 N.Y.S.3d 455 ). Thus, the defendant's statutory right to a speedy trial was not violated (see People v....