People v. Wilson
| Decision Date | 28 December 1992 |
| Citation | 591 N.Y.S.2d 513,188 A.D.2d 671 |
| Parties | The PEOPLE, etc., Respondent, v. Robert WILSON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Verna W. Cobb, Tuxedo, for appellant.
Francis D. Phillips, II, Dist. Atty., Goshen (David R. Huey, of counsel; Christine Broughal, on the brief), for respondent.
Before THOMPSON, J.P., and BRACKEN, LAWRENCE and MILLER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered February 19, 1991, convicting him of attempted rape in the first degree, sexual abuse in the first degree, and assault in the second degree, after a nonjury trial, and imposing sentence.
ORDERED that the matter is remitted to the County Court, Orange County, to hear and report on the defendant's motion to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial pursuant to CPL 30.30, and the appeal is held in abeyance in the interim; the County Court shall file its report with all convenient speed.
Pursuant to CPL 30.30(1)(a), the People must announce their readiness for trial within six months of the commencement of a criminal proceeding charging the defendant with a felony, less certain excludable periods (CPL 30.30[4]. The present criminal action is deemed to have commenced on December 29, 1989, the date of the order of this court remitting the matter for a new trial became final (People v. Wilson, 156 A.D.2d 743, 549 N.Y.S.2d 494; see, CPL 30.30[5][a]. Thus, the six-month period expired on June 29, 1990, 182 days later. The retrial of the defendant did not commence until January 1991.
In his pro se motions to dismiss the indictment on the ground that his statutory right to a speedy trial had been denied, both of which were interposed after the six-month deadline had expired, and in his reply papers, the defendant asserted that: (1) the People did not properly assert their readiness for trial, i.e. they did not make a "communication of readiness" either "in open court" or by "written notice" (People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287); (2) the People's alleged assertion of readiness was illusory inasmuch as the People had not yet spoken with the complainant in order to secure her presence at trial, despite their having sought at least one prior adjournment for that very purpose (see, People v. Kendzia, supra, at 337, 486 N.Y.S.2d 888, 476 N.E.2d 287; People v. Caussade, 162 A.D.2d 4, 560 N.Y.S.2d 648; People v. Robinson, 143 Misc.2d 163, 539 N.Y.S.2d 852); and (3) the adjournments contributing to the delay were attributable to the People, and the defendant's failure to object to these adjournments, relied upon by the People, does not constitute consent so as to relieve the People of the responsibility for that portion of the delay (see, People v. Liotta, 79 N.Y.2d 841, 843, 580 N.Y.S.2d 184, 588 N.E.2d 82).
In opposition, the People: (1) claimed to have declared their readiness on February 27, 1990, well within the six month period; (2) asserted the genuineness of that declaration despite not having...
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