Opinion
506 KA 20-01351
07-01-2022
The PEOPLE of the State of New York, Respondent, v. Torrence JACKSON, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, inter alia, two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that Supreme Court erred in denying his motion to dismiss the indictment on statutory speedy trial grounds (see CPL 30.30 ). We reject that contention.
Initially, we note that, as of January 1, 2020 (see L 2019, ch 59, § 1, part KKK, § 2), "[a]n order finally denying a motion to dismiss pursuant to [ CPL 30.30 (1) ] shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty" ( CPL 30.30 [6] ; cf. People v. O'Brien , 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982] ; People v. Butler , 170 A.D.3d 1496, 1496-1497, 94 N.Y.S.3d 512 [4th Dept. 2019] ). Here, defendant's challenge to the denial of his statutory speedy trial motion is reviewable on appeal inasmuch as the judgment on appeal was rendered after the effective date of that statute (cf. People v. George , 199 A.D.3d 831, 832, 154 N.Y.S.3d 269 [2d Dept. 2021], lv denied 38 N.Y.3d 927, 164 N.Y.S.3d 24, 184 N.E.3d 845 [2022] ; People v. Lara-Medina , 195 A.D.3d 542, 542, 145 N.Y.S.3d 804 [1st Dept. 2021], lv denied 37 N.Y.3d 993, 152 N.Y.S.3d 426, 174 N.E.3d 366 [2021] ; People v. Duggins , 192 A.D.3d 191, 194-195, 140 N.Y.S.3d 317 [3d Dept. 2021], lv denied 36 N.Y.3d 1096, 144 N.Y.S.3d 152, 167 N.E.3d 1287 [2021] ).
Nevertheless, we conclude that defendant's challenge to the denial of his motion lacks merit. "Where, as here, a felony is included in an indictment, the People must be ready for trial within six months, after subtracting excludable time" ( People v. Barden , 27 N.Y.3d 550, 553, 36 N.Y.S.3d 80, 55 N.E.3d 1053 [2016] ; see CPL 30.30 [1] [a] ). "The statutory period is calculated by ‘computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for exclusion’ " ( People v. Barnett , 158 A.D.3d 1279, 1280, 71 N.Y.S.3d 775 [4th Dept. 2018], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 99, 103 N.E.3d 1246 [2018], quoting People v. Cortes , 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992], rearg denied 81 N.Y.2d 1068, 601 N.Y.S.2d 586, 619 N.E.2d 664 [1993] ). " ‘[P]ostreadiness delay may be charged to the People when the delay is attributable to their inaction and directly implicates their ability to proceed to trial’ " ( People v. Fulmer , 87 A.D.3d 1385, 1385, 929 N.Y.S.2d 897 [4th Dept. 2011], lv denied 18 N.Y.3d 994, 945 N.Y.S.2d 649, 968 N.E.2d 1005 [2012], quoting People v. Carter , 91 N.Y.2d 795, 799, 676 N.Y.S.2d 523, 699 N.E.2d 35 [1998] ).
Here, the People announced their readiness for trial within one month of the commencement of the statutory period. Nevertheless, defendant contends that the postreadiness period from March 18, 2019, to December 9, 2019, is chargeable to the People because that delay was caused by adjournments necessitated by the People's inability to obtain certain new evidence, i.e., his fingerprints in a useable form, and thus the statement of readiness was illusory. We conclude, however, that "[a]lthough the People acquired new evidence ... 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 [new] evidence" ( People v. Hewitt , 144 A.D.3d 1607, 1607-1608, 41 N.Y.S.3d 620 [4th Dept. 2016], lv denied 28 N.Y.3d 1185, 52 N.Y.S.3d 711, 75 N.E.3d 103 [2017] ; see People v. Huddleston , 196 A.D.3d 1098, 1100, 150 N.Y.S.3d 480 [4th Dept. 2021], lv denied 37 N.Y.3d 1060, 154 N.Y.S.3d 635, 176 N.E.3d 671 [2021] ; People v. Pratt , 186 A.D.3d 1055, 1057, 129 N.Y.S.3d 595 [4th Dept. 2020], lv denied 36 N.Y.3d 975, 138 N.Y.S.3d 480, 162 N.E.3d 709 [2020] ). In any event, all except two weeks of that time "is not chargeable to the People because it was the result of ‘... continuance[s] granted by the court at the request of ... defendant or his counsel’ " ( Hewitt , 144 A.D.3d at 1608, 41 N.Y.S.3d 620, quoting CPL 30.30 [4] [b] ; see People v. Yampierre , 300 A.D.2d 419, 419, 750 N.Y.S.2d 787 [2d Dept. 2002], lv denied 99 N.Y.2d 634, 760 N.Y.S.2d 116, 790 N.E.2d 290 [2003] ; cf. generally People v. Liotta , 79 N.Y.2d 841, 843, 580 N.Y.S.2d 184, 588 N.E.2d 82 [1992] ).
The sentence is not unduly harsh or severe.