Opinion
2020–03126 Ind. No. 1241/18
08-25-2021
The PEOPLE, etc., respondent, v. Daquan M. BOWMAN, appellant.
The Law Office of Joseph A. Lobosco, PLLC, Rochester, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Michael J. Curtis of counsel), for respondent.
The Law Office of Joseph A. Lobosco, PLLC, Rochester, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill and Michael J. Curtis of counsel), for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry Kron, J., at plea; Gia Morris, J., at sentence), rendered February 19, 2020, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied his motion to dismiss the indictment on the ground that he was deprived of his right to a speedy trial pursuant to CPL 30.30(1)(a). In felony cases, the People are required to be ready for trial within six months after the commencement of the criminal action (see CPL 30.30[1][a] ; People v. Beasley, 16 N.Y.3d 289, 291, 921 N.Y.S.2d 178, 946 N.E.2d 166 ; People v. Carter, 91 N.Y.2d 795, 798, 676 N.Y.S.2d 523, 699 N.E.2d 35 ). In this case, the relevant six-month period was 181 days. "Excludable periods include, inter alia, reasonable periods of delay resulting from other proceedings concerning the defendant, such as pretrial motions, or continuances obtained on consent or at the request of the defendant" ( People v. Murray, 154 A.D.3d 881, 882, 63 N.Y.S.3d 82 ; see CPL 30.30[4][a], [b] ). Here, 176 days that the court determined were chargeable to the People are not in dispute. Contrary to the defendant's contention, the Supreme Court properly charged 11 days to the People, rather than 14 days, in connection with a two-week adjournment they sought to respond to a motion by the defendant. The court properly, in effect, credited the People with 3 days due to the defendant's 3–day delay in filing the motion, which shortened the People's time to respond under the briefing schedule set by the Court. "Inasmuch as the Legislature intended CPL 30.30 to address delays caused by the People, the time required for defendant's pretrial motions and his requested adjournments should be excluded" ( People v. Worley , 66 N.Y.2d 523, 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228 ).
Further, the Supreme Court properly excluded the five-day period from June 14, 2019, to June 19, 2019, from the time chargeable to the People. Once the People have announced their readiness, they will only be charged with delays that are attributable to their inaction and that directly implicate their ability to proceed with trial (see People v. Nielsen, 306 A.D.2d 500, 761 N.Y.S.2d 316 ). In general, the People are "entitled to a reasonable time to respond" to a defense motion (see People v. Anderson, 216 A.D.2d 309, 627 N.Y.S.2d 752 ). Here, based upon the prosecutor's trial schedule, the People sought and obtained a five-day extension of time to respond to the defendant's motion. Inasmuch as the delay was not unreasonable and the People had a legitimate reason to seek additional time, which reason was explained to the court at the time the extension was sought, the court properly excluded the five-day period from the time chargeable to the People (see People v. Holden, 260 A.D.2d 233, 235, 689 N.Y.S.2d 40 ; cf. People v. Owens, 209 A.D.2d 549, 550, 619 N.Y.S.2d 620 ).
The defendant's remaining contention that one additional day should have been charged to the People is unpreserved for appellate review. Since the contention is academic in light of our determination regarding the other time periods at issue on the appeal, we decline to review it in the exercise of our interest of justice jurisdiction.
RIVERA, J.P., HINDS–RADIX, CONNOLLY and IANNACCI, JJ., concur.