Opinion
2010CN003156.
Decided September 7, 2010.
Kate Mogulescu, Esq., Legal Aid Society, NY, NY, for D.
NY County District Attorney's Office by ADA Wesley Cheng, NY, NY, for the People.
Defendant was tried by this Court and found guilty of Loitering for Prostitution (Penal Law § 240.37). She moves to set aside that verdict pursuant to Criminal Procedure Law § 330.30 (1). This statutory provision permits the Court to set aside or modify a verdict when there appears in the record any ground which, if raised upon appeal, would require a reversal or modification as a matter of law. Defendant argues that the verdict must be set aside because (1) the People improperly amended the information as to place of offense mid-trial without application to the Court and notice to Defense Counsel and (2) the Court violated defendant's right to a speedy verdict by reserving the verdict for 42 days.
As to defendant's first point, there was no improper amendment of the information mid-trial. Prior to commencement of trial, the People timely filed and served a prosecutor's information charging defendant with the same offense as that charged in the information. Defendant was arraigned upon that prosecutor's information and was subsequently tried upon that prosecutor's information. The prosecutor's information superceded the original information and the original information was deemed dismissed prior to trial. (CPL § 100.50) Since the original information was not in existence during trial, there could not be, and there was not, an improper amendment of that original information mid-trial.
The prosecutor's information alleged that the offense occurred in the County of New York. The trial evidence showed that the offense occurred on Eighth Avenue between 43rd and 44th Streets in the County of New York. The trial evidence supported the allegation in the prosecutor's information.
In his supporting deposition, which was part of the original information, the police officer witness alleged that the offense occurred in the County of New York at the northwest corner of 44th Street and Eighth Avenue. At trial the officer testified that the offense took place on Eighth Avenue between 43rd and 44th Streets. Contrary to defendant's argument, this minor discrepancy between the supporting deposition and the trial testimony was not the equivalent of an improper amendment of the accusatory instrument. Rather, it was simply a prior inconsistent statement which defense counsel fully exploited on her cross-examination.
Following closing arguments, the Court ordered a transcript in order to carefully review the trial testimony, and adjourned the case to a date certain to render its verdict. The Court ascertained from defense counsel that the date did not conflict with her scheduled vacation. Defense counsel did not object to the adjourned date. On the date set for the Court to render its verdict, defendant failed to appear and a bench warrant was ordered. At the insistence of defense counsel, the Court rendered its verdict. Despite the fact that defendant failed to appear on the day set for verdict, her counsel filed the instant motion on that date arguing that defendant's right to a speedy verdict had been violated. Defendant remains a fugitive.
Defendant's assertion that her claim of a speedy verdict violation would require a reversal upon appeal is, under the circumstances of this case, without merit. As noted above, defendant did not protest the length of the adjournment. Her acquiescence-whether strategic or otherwise-failed to preserve the issue for appellate review.
The leading case on the speedy verdict issue — People v South ( 41 NY2d 451) — is premised on the explicitly stated assumption that "due and timely protest was registered to failure of the trial court at the close of the trial to render a verdict then or to adjourn the case to a day certain". ( South, supra, at 453). In People v Andrews ( 102 AD2d 894), defendant's speedy verdict claim was dismissed because "the defendant did not protest the length of the adjournment and, indeed, acquiesced in it". (citing People v South, supra). In People v Hryn ( 144 AD2d 961), decision was reserved but the court did not set an adjourned date and there was no indication that a delay of significant duration would ensue. Under those circumstances, the Appellate Division found that defendant's failure to object did not amount to a consent to the delay.
In the instant case, the verdict was reserved, a transcript was ordered for the Court to review and the case was adjourned to a date certain which was convenient for both the court and defense counsel. Defendant neither objected to the length of the adjournment nor requested a shorter adjournment. Under these circumstances, the speedy verdict issue has not been preserved. Thus, reversal or modification would not be required as a matter of law if the issue were raised upon appeal.
Defendant's motion is denied in all respects. This constitutes the decision and order of the Court.