People v. Young

• Decision Date: 17 February 2015
• Docket Number: No. 2010–1472 K CR.,2010–1472 K CR.
• Citation: 13 N.Y.S.3d 852 (Table)
• Parties: The PEOPLE of the State of New York, Respondent, v. Terrence YOUNG, Appellant.
• Court: New York Supreme Court — Appellate Term

13 N.Y.S.3d 852 (Table)

The PEOPLE of the State of New York, Respondent

v.Terrence YOUNG, Appellant.

No. 2010–1472 K CR.

Supreme Court, Appellate Term, Second Dept, 2, 11 and 13 Judicial Districts.

Feb. 17, 2015.

Opinion

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Miriam Cyrulnik, J.), rendered April 23, 2010. The judgment convicted defendant, after a nonjury trial, of disorderly conduct. The appeal from the judgment of conviction brings up for review an order of the same court (David Godosky, J.) dated February 8, 2010 denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a misdemeanor complaint with assault in the third degree (Penal Law § 120.00[1] ), obstructing governmental administration in the second degree (Penal Law § 195.05 ), resisting arrest (Penal Law § 205.30 ), attempted assault in the third degree (Penal Law §§ 110.00, 120.00[1] ), disorderly conduct (Penal Law § 240.20[1] ), and harassment in the second degree (Penal Law § 240.26[1] ). Defendant moved to dismiss the accusatory instrument on the ground that he was denied his statutory right to a speedy trial. As the top charge of the complaint was a Class A misdemeanor, the People had to be ready for trial within 90 days of the commencement of the action (CPL 30.30[1][b] ). The Criminal Court (David Godosky, J.), denied the motion, finding that only 62 days were chargeable to the People. Following a nonjury trial (Miriam Cyrulnik, J.), defendant was convicted of disorderly conduct.

The record establishes that, on January 18, 2009, defendant was arraigned in Criminal Court and the matter was adjourned to February 25, 2009 for conversion of the accusatory instrument. On February 19, 2009, the People filed an off-calendar statement of readiness together with a supporting deposition from the arresting officer, thereby converting the complaint to an information. At the February 25, 2009 court appearance, the People declared their readiness for trial on the record; however, defense counsel requested discovery and the court adjourned the action to April 6, 2009. Subsequently, there were several additional adjournments, at defense counsel's request, for additional discovery. On September 30, 2009, the People announced not ready for trial since the arresting officer was not available, and they requested an adjournment until October 5, 2009. The court adjourned the action to November 2, 2009, and, on that date, the People again announced not ready for trial and requested an adjournment until November 13, 2009. On November 13, 2009, the People announced not ready for trial, and they requested a one-week adjournment since the assistant district attorney was on trial. The court indicated that it was going to continue to charge time to the People until they served and filed a second statement of readiness, which they did, off-calendar, 35 days later on December 18, 2009. At the next scheduled appearance, on January 12, 2010, the People again announced not ready for trial and requested an adjournment to January 19, 2010 on the ground that they had learned that there was a New York City Housing Authority (N.Y.CHA) hearing conducted related to the case, in which both the arresting officer and defendant had testified, and they were in the process of obtaining the transcript from that hearing. After having received the transcript, the People served and filed a third off-calendar statement of readiness on January 13, 2010.¹

Defendant's motion seeking to dismiss the accusatory instrument on statutory speedy trial grounds was properly denied. The People concede that 50 days were chargeable to them (32 days from January 18 to February 19, 2009; 11 days from November 2 to November 13, 2009; and 7 days from November 13 to November 20, 2009). Furthermore, the Criminal Court properly charged the People with the five days from September 30, 2009 to October 5, 2009, when the People indicated that the arresting officer was not available without demonstrating due diligence to make him available, let alone providing a reason for his absence (see People v. Zirpola, 57 N.Y.2d 706, 708 [1982] ; People v. Boyd, 189 A.D.2d 433 [1993] ). Additionally, the court charged the People with the full seven days that they had requested, from January 12, 2010 to January 19, 2010, to obtain the NYCHA transcript. However, despite defendant's contention to the contrary, the second statement of readiness, filed on December 18, 2009, was not illusory, as it accurately reflected the People's position of readiness at the time it was filed, since the transcript of the NYCHA hearing which they subsequently sought to obtain was not necessary to make out their prima facie case, as represented to the Criminal Court when the next adjournment was requested on January 12, 2010 (cf. People v. Sibblies, 22 NY3d 1174 [2014] [under either of the concurrences]; People v. Bonilla, 94 AD3d 633 [2012] ). Therefore, even if the People were charged for the entire period of time between November 13, 2009, when they appeared in court requesting a one-week adjournment due to...