Opinion
11-10-2016
The PEOPLE of the State of New York, Respondent, v. Michael A. HEWITT, Defendant–Appellant.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael A. Hewitt, Defendant–Appellant Pro Se. Niagara County District Attorney's Office, Lockport (Thomas H. Brandt of Counsel), for Respondent.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant.
Michael A. Hewitt, Defendant–Appellant Pro Se.
Niagara County District Attorney's Office, Lockport (Thomas H. Brandt of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, assault in the third degree (§ 120.00 [1] ). Contrary to defendant's contention in his main and pro se supplemental briefs, the People complied with their obligation to be ready for trial within six months of the commencement of the criminal action (see CPL 30.30[1] [a] ). The 44–day prereadiness delay between the filing of the felony complaints on November 2, 2013 and the People's announcement of their readiness for trial in open court on December 16, 2013 is well within the sixth-month period (see People v. Goss, 87 N.Y.2d 792, 797, 642 N.Y.S.2d 607, 665 N.E.2d 177 ; People v. White, 93 A.D.3d 1181, 1181, 940 N.Y.S.2d 389 ). Although the People acquired new evidence from the victim's cell phone after they announced their readiness for trial, the People's statement of readiness was not illusory because the People could have proceeded to trial without the cell phone evidence by presenting the testimony of the victim and other witnesses (see People v. Brown, 269 A.D.2d 809, 809, 704 N.Y.S.2d 421, affd. 96 N.Y.2d 80, 725 N.Y.S.2d 601, 749 N.E.2d 170 ; People v. Watkins, 17 A.D.3d 1083, 1083, 793 N.Y.S.2d 657, lv. denied 5 N.Y.3d 771, 801 N.Y.S.2d 265, 834 N.E.2d 1275 ; People v. Bargerstock, 192 A.D.2d 1058, 1058, 596 N.Y.S.2d 611, lv. denied 82 N.Y.2d 751, 603 N.Y.S.2d 992, 624 N.E.2d 178 ). The period of postreadiness delay between May 15, 2014 and September 15, 2014 is not chargeable to the People because it was the result of “a continuance granted by the court at the request of ... the defendant or his counsel” (CPL 30.30[4][b] ; see People v. Green, 174 A.D.2d 1036, 1036, 572 N.Y.S.2d 201, lv. denied 78 N.Y.2d 966, 574 N.Y.S.2d 946, 580 N.E.2d 418 ). Even assuming, arguendo, that the 84–day postreadiness delay between September 15, 2014 and December 8, 2014 is chargeable to the People because a death in the prosecutor's family does not constitute an “exceptional circumstance[ ]” (CPL 30.30[4][g] ; see People v. DiMeglio, 294 A.D.2d 239, 240, 743 N.Y.S.2d 83 ), the total prereadiness and postreadiness time chargeable to the People is only 128 days. The record therefore establishes that “ ‘the total period of time chargeable to the People is less than six months' ” (People v. Brown, 82 A.D.3d 1698, 1699, 919 N.Y.S.2d 674, lv. denied 17 N.Y.3d 792, 929 N.Y.S.2d 100, 952 N.E.2d 1095 ; see People v. Figueroa, 15 A.D.3d 914, 915, 788 N.Y.S.2d 772 ).
Defendant further contends in his main and pro se supplemental briefs that he was denied his constitutional rights to a speedy trial and due process of law. Upon our review of the relevant factors (see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ), we conclude that defendant was not deprived of his constitutional right to a speedy trial (see People v. Brooks, 140 A.D.3d 1780, 1780–1781, 32 N.Y.S.3d 408 ), and we note in particular that “ ‘there [was] a complete lack of any evidence that the defense was impaired by reason of the delay’ ” (People v. Walter, 138 A.D.3d 1479, 1480, 30 N.Y.S.3d 459, lv. denied, 27 N.Y.3d 1141, 39 N.Y.S.3d 123, 61 N.E.3d 522 ; see People v. Schillawski, 124 A.D.3d 1372, 1373, 999 N.Y.S.2d 657, lv. denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172 ). “Upon considering the Taranovich factors, we [further] conclude that the delay did not deprive defendant of his right to due process” (People v. Williams, 120 A.D.3d 1526, 1527, 993 N.Y.S.2d 196, lv. denied 24 N.Y.3d 1090, 1 N.Y.S.3d 16, 25 N.E.3d 353 ; see People v. White, 108 A.D.3d 1236, 1237, 969 N.Y.S.2d 711, lv. denied 22 N.Y.3d 1044, 981 N.Y.S.2d 378, 4 N.E.3d 390 ).
Finally, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.