Opinion
No. 570743/14.
07-21-2015
The PEOPLE of the State of New York, Appellant, v. Christopher CATES, Defendant–Respondent.
Opinion
Order (Linda Poust–Lopez, J.), dated December 10, 2013, modified, on the law and the facts, by denying defendant's motion to dismiss the charges of resisting arrest, obstructing governmental administration in the second degree, three counts of attempted assault in the third degree and three counts of harassment in the second degree, and by reinstating the accusatory instrument insofar as it relates to those charges; as modified, order affirmed and matter remitted to Criminal Court for further proceedings.
The underlying charges stem from a physical altercation between defendant and the complaining witnesses, four correction officers. The People's March 26, 2013 statement of readiness to proceed to trial on charges of resisting arrest (Penal Law § 205.30 ), obstructing governmental administration in the second degree (Penal Law § 195.05 ), three of the four counts of attempted assault in the third degree (Penal Law 110/120.00[1] ), and three of the four counts of harassment in the second degree (Penal Law § 240.26[1] ), effectively stopped the “speedy trial” clock, inasmuch as the counts of the accusatory instrument pertaining to those charges were “deemed” converted to an information on that date (CPL 170.65[1] ), and no basis is shown to conclude that the People were not then actually ready to proceed on the converted charges (see People v. Carter, 91 N.Y.2d 795, 798 [1998] ; People v. Kendzia, 64 N.Y.2d 331, 337 [1985] ). That the accusatory instrument may have contained two other counts which had not been timely converted did not signify a lack of readiness to proceed on the properly converted counts, concerning which the People were “technically positioned” to go to trial (People v. Terry, 225 A.D.2d 306, 307 [1996], lv denied 88 N.Y.2d 886 [1996] ; see also People v. Dion, 93 N.Y.2d 893 [1999] ). It need be emphasized that speedy trial analysis “must, as a matter of course, often involve distinct considerations with respect to individual counts of a single accusatory instrument” (People v.. Ausby, 46 Misc.3d 126[A], 2014 N.Y. Slip Op 51763 [App Term, 1st Dept 2014], lv denied 24 NY3d 1218 [2015] ; People v. Gonzalez, 168 Misc.2d 136, 137 [1996], lv denied 88 N.Y.2d 936 [1996], each quoting from People v. Minor, 144 Misc.2d 846, 848 [1989], lv denied 74 N.Y.2d 666 [1989] ).
We sustain the dismissal of the remaining charges, one count each of attempted assault in the third degree and harassment in the second degree, since the People did not timely convert the accusatory instrument to an information with respect to those charges. Contrary to the People's contention, in the absence of any showing whatsoever that they attempted with due diligence to obtain the supporting deposition of the complaining witness on these two unconverted charges, a Darnell Jean–Francois, who was deployed for military service in Afghanistan, the period from May 15, 2013 through July 20, 2013, was not excludable on the ground of “exceptional circumstances” (CPL 30.30[4][g] ; see People v. Thompson, 118 AD3d 922, 923 [2014] ). When this period of delay is added to the 61 days of chargeable time conceded by the People, the total time for which the People should have been charged well exceeded the 90–day limit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur.