Opinion
570166/16
01-21-2022
The PEOPLE of the State of New York, Respondent, v. Damien POWELL, Defendant-Appellant.
Legal Aid Society (Steven J. Miraglia of counsel) for appellant. Alvin Bragg, District Attorney (Michael J. Yetter of counsel), for respondent.
Legal Aid Society (Steven J. Miraglia of counsel) for appellant.
Alvin Bragg, District Attorney (Michael J. Yetter of counsel), for respondent.
PRESENT: Edmead, P.J., McShan, Silvera, JJ.
Per Curiam.
Judgment of conviction (Gilbert C. Hong, J., at speedy trial motion; Felicia Mennin, J., at trial and sentencing), rendered February 29, 2016, affirmed.
Criminal Court properly denied defendant's CPL 30.30 motion with regard to the third-degree sexual abuse charge. That count of the accusatory instrument was converted to an information on February 17, 2015 and only 88 days of includable time elapsed through January 28, 2016. Although the accusatory instrument also contained a forcible touching count which was not converted until December 3, 2015 and ultimately dismissed on speedy trial grounds, this did not affect the People's readiness to proceed on the timely converted sexual abuse charge (see People v. Terry , 225 A.D.2d 306, 307, 639 N.Y.S.2d 3 [1996], lv denied 88 N.Y.2d 886, 645 N.Y.S.2d 461, 668 N.E.2d 432 [1996] ; see also People v. Proscia , 49 Misc. 3d 127[A], 2015 N.Y. Slip Op. 51373[U], 2015 WL 5682900 [App. Term, 1st Dept. 2015] ; People v. Naim , 46 Misc. 3d 150[A], 2015 N.Y. Slip Op. 50270[U], 2015 WL 921554 [App. Term, 1st Dept. 2015], lv denied 27 N.Y.3d 1137, 39 N.Y.S.3d 119, 61 N.E.3d 518 [2016] ). As Criminal Court properly recognized, the law then in effect provided 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. 51763U, 2014 WL 7177512 [App. Term, 1st Dept. 2014], lv denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015] [internal quotation marks omitted])
Although a 2019 amendment to CPL 30.30 changed the law concerning the validity of a statement of readiness for a multi-count local criminal court accusatory instrument (see CPL 30.30[5-a] ), we reject defendant's contention that this new statute should be retroactively applied to the February 2016 conviction challenged on this appeal (see People v. Duggins , 192 A.D.3d 191, 140 N.Y.S.3d 317 [2021], lv denied 36 N.Y.3d 1096, 144 N.Y.S.3d 152, 167 N.E.3d 1287 [2021] ). The legislature did not clearly express an intention that CPL 30.30(5-a) be applied retroactively to cases where a defendant was sentenced prior to the effective date of the legislation (see McKinney's Cons Laws of NY, Book 1, Statutes § 52; Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal , 35 N.Y.3d 332, 370, 130 N.Y.S.3d 759, 154 N.E.3d 972 [2020] ["(i)t takes a clear expression of the legislative purpose ... to justify a retroactive application" of a statute, which "assures that (the legislative body) itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits"][internal quotation marks and citation omitted]). Moreover, statutory amendments are presumed to apply prospectively, and the exception allowing for retroactive application of remedial legislation and statutes governing procedural matters is inapposite because CPL 30.30(5-a) changed the law regarding partial readiness by imposing a new requirement for prosecutors to declare readiness for trial and thus, in effect, bestowed a new speedy trial right (see William C. Donnino, Supp Practice Commentary, McKinney's Consolidated Laws of New York, CPL 30.30 ). The extended (eight-month) postponement of the effective date of the amendment indicates an intention to delay its application, further militating against applying it retroactively (see People v. Utsey, 7 N.Y.3d 398, 403, 822 N.Y.S.2d 475, 855 N.E.2d 791 [2006] ["If the amendments were to have retroactive effect, there would have been no need for any postponement"] [citation omitted]).
The court properly permitted the complainant to make an in-court identification of defendant for the first time during trial (see People v. Johnson , 197 A.D.3d 725, 727, 153 N.Y.S.3d 156 [2021], lv denied 37 N.Y.3d 1097, 2021 WL 5893822 [2021] ). Since the complainant did not participate in a pretrial identification procedure and there is no colorable claim of suggestiveness, there was no need for the People to establish an independent basis for the admission of her testimony (see People v. Jackson , 94 A.D.3d 1559, 1560, 943 N.Y.S.2d 365 [2012], lv denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [2012] ). Furthermore, defendant was "able to explore weaknesses and suggestiveness of the identification in front of the [trier of fact]" ( People v. Morales , 176 A.D.3d 1235, 1235, 109 N.Y.S.3d 650 [2019], lv granted 35 N.Y.3d 972, 125 N.Y.S.3d 5, 148 N.E.3d 469, app withdrawn 36 N.Y.3d 969, 138 N.Y.S.3d 497, 162 N.E.3d 726 [2020] [citation omitted). Moreover, the defendant's challenges to the reliability of the identification evidence go to the weight to be afforded such evidence by the trier of fact and not to its admissibility (see People v. Dennard , 39 A.D.3d 1277, 833 N.Y.S.2d 831 [2007], lv denied 9 N.Y.3d 842, 840 N.Y.S.2d 769, 872 N.E.2d 882 [2007] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur.