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People v. Merck

State of New York Supreme Court, Appellate Division Third Judicial Department


June 18, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ROBERT J. MERCK, APPELLANT.

The opinion of the court was delivered by: Stein, J.

MEMORANDUM AND ORDER

Calendar Date: April 20, 2009

Before: Cardona, P.J., Mercure, Kavanagh, Stein and McCarthy, JJ.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered September 10, 2007, upon a verdict convicting defendant of three counts of the crime of burglary in the third degree.

On the morning of September 14, 2006, a witness observed defendant vandalizing a vending machine with a crow bar in an auto parts store located in the Town of Oswegatchie, St. Lawrence County. The police found defendant in a car wash located across the street from the auto parts store, which was within the City of Ogdensburg, St. Lawrence County. After an altercation in which defendant struck and injured a police officer, defendant was taken into custody and transported to the Ogdensburg Police Department where Miranda warnings were administered.

Defendant was arraigned in the Oswegatchie Town Court and in the Ogdensburg City Court on September 14, 2006. In both courts, defendant requested the assignment of counsel and a preliminary hearing.*fn1 After the People elected not to go forward with either hearing, County Court divested the local criminal courts of jurisdiction over the matter, and defendant's attorney was notified by letter dated February 26, 2007 of the People's intention to present the case to the grand jury on March 1, 2007. However, on February 28, 2007, defendant requested an opportunity to testify before the grand jury, prompting County Court to issue an order to produce to the St. Lawrence County Sheriff's Department directing that defendant be produced on March 8, 2007. After hearing defendant's testimony on that day, the grand jury indicted him on three counts of burglary in the third degree and a single count of attempted assault in the second degree. The People filed the indictment and a statement of readiness for trial on March 13, 2007.

In May 2007, defendant moved to dismiss the indictment on the basis that the People failed to declare their readiness for trial within the limitations imposed by CPL 30.30. County Court denied the motion and the matter proceeded to trial. Defendant was found guilty of the three counts of burglary in the third degree, the fourth count having been dismissed prior to trial. Defendant was then sentenced, as a second felony offender, to consecutive prison terms of 31/2 to 7 years on each count. Defendant now appeals and we affirm.

Initially, defendant challenges County Court's denial of his motion to dismiss the indictment based upon a violation of his speedy trial rights (see CPL 30.30 [1] [a]).*fn2 It is undisputed that, inasmuch as the action commenced on September 14, 2006, the People were required to be ready for trial 181 days later on March 14, 2007 (see CPL 30.30 [1] [a]). The parties also agree that the People were required to declare their readiness for trial on March 12, 2007 -- two days before the end of the statutory period (see CPL 210.10) -- but did not do so until March 13, 2007. Defendant argues that, in determining that the People's declaration of readiness was timely, County Court improperly excluded certain periods of time that were chargeable to the People (see CPL 30.30 [4] [b], [f]).

We agree with County Court's determination that there was no violation of defendant's right to a speedy trial. However, we reach that conclusion on the basis that the seven-day delay attributable to the adjournment of the grand jury proceedings to accommodate the request of defendant -- who was incarcerated -- to testify was chargeable to defendant and, therefore, excludable from the relevant period (see CPL 30.30 [4] [b]; People v Casey, 61 AD3d 1011, 1012 [2009]; compare People v Meierdiercks, 68 NY2d 613, 614-615 [1986]; People v Anderson, 252 AD2d 399, 400 [1998], lv denied 92 NY2d 1027 [1998]). We specifically note that all of the People's witnesses had completed their testimony before the grand jury on March 1, 2007 and the only reason that no vote was taken that day was due to defendant's desire to testify. The fact that the People subsequently brought a motion on March 1, 2007 concerning the conditions under which defendant would appear before the grand jury does not require a different result (see People v Meierdiercks, 68 NY2d at 614-615).

Finally, we are unpersuaded by defendant's contention that the sentence imposed was vindictive. While the sentence was greater than any of the plea offers made prior to the jury's verdict, it was based on appropriate sentencing factors, including defendant's criminal history (see People v Pena, 50 NY2d 400, 411-412 [1980], cert denied 449 US 1087 [1981]; People v Chappelle, 14 AD3d 728, 729 [2005], lv denied 5 NY3d 786 [2005]; People v Simon, 180 AD2d 866, 867 [1992], lv denied 80 NY2d 838 [1992]), and we discern no basis for a modification of the sentence.

Regarding defendant's remaining contentions, one is academic*fn3 and the others have been reviewed and are without merit.

Cardona, P.J., Mercure, Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.


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