Appeal by the defendant from a judgment of the Supreme Court, Kings County (Holdman, J.), rendered January 31, 2008, convicting him of criminal possession of a controlled substance in the second degree, upon a jury verdict, and imposing sentence.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J.P., STEVEN W. FISHER, THOMAS A. DICKERSON, RANDALL T. ENG and L. PRISCILLA HALL, JJ.
ORDERED that the judgment is affirmed.
The defendant claims, inter alia, that the Supreme Court (Firetog, J.) erred in denying his motion to dismiss the indictment pursuant to CPL 30.30. We disagree.
On May 27, 2005, an indictment was returned against the defendant, and the People filed a statement of readiness with the court and served it on the defendant. Thereafter, at his arraignment on the indictment, the defendant asked the court to inspect the grand jury minutes. The court adjourned the matter to August 17, 2005, for discovery and for the People to produce the grand jury minutes. On August 17, 2005, the People represented that they would file the grand jury minutes "off calendar." The court stated that the matter would be adjourned to allow the inspection of the grand jury minutes, and that "[t]he adjournment will be by the Court." Defense counsel asked that the case be adjourned to the latter part of September, specifically, September 29, 2005. To accommodate counsel, the court agreed to adjourn the case to September 28, 2005, for a decision as to the sufficiency of the grand jury evidence. The court directed the People to furnish the grand jury minutes to chambers, and the People did so on August 30, 2005. On September 28, 2005, as scheduled, the court rendered its decision as to the sufficiency of the grand jury evidence, dismissing one count of the indictment, but giving the People leave to re-present.
The defendant's motion to dismiss the indictment pursuant to CPL 30.30 turns on whether the period between August 17, 2005, and August 30, 2005, is chargeable to the People. The defendant contends that it is, and that, when added to the other unexcused periods of delay, the People were not ready for trial within six months. To the contrary, we find that no part of the period between August 17, 2005, and September 28, 2005, including the period between August 17, 2005, and August 30, 2005, was chargeable to the People.
In felony cases, CPL 30.30 requires that the People be ready for trial within six months of the commencement of the action (see CPL 30.30[a]). "Whether the People have satisfied this obligation is generally determined 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 an exclusion" (People v Cortes, 80 NY2d 201, 208 [emphasis added]; see People v Fehr, 45 AD3d 920, 922; People v Vaughn, 36 AD3d 434, 436, cert deniedUS, 128 S Ct 1711). Inasmuch as the People communicated their readiness for trial on May 27, 2005, when they filed the indictment, the period at issue here must be seen as constituting, if anything, a postreadiness delay.
When the case was called on August 17, 2005, it was understood that a reasonable adjournment would be required to give the court an opportunity to inspect the grand jury minutes and determine the defendant's challenge to the legal sufficiency of the grand jury evidence. The date to which the matter was adjourned was selected to accommodate defense counsel's express request (cf. People v Williams, 32 AD3d 403, 404-405). On September 28, 2005, the court, having received the grand jury minutes from the People nearly a month earlier, rendered its decision. On this record, therefore, the fact that the People delivered the grand jury minutes to the court "off calendar" on August 30, 2005, rather than on August 17, 2005, cannot be said to have caused any delay whatsoever in the progress of the case (cf. People v Harris, 82 NY2d 409, 412; People v McKenna, 76 NY2d 59). Notably, the defendant makes no claim, and made no claim in the Supreme Court, that, had the grand jury minutes been handed up at the August 17, 2005, court appearance, he would have asked for an earlier adjourned date. The absence of such a claim is significant, as it is the defendant who bears the burden of demonstrating that any postreadiness delays should be charged to the People (see People v Brewer, 63 AD3d 402; People v Daniels, 217 AD2d 448, 452; cf. People v Cortes, 80 NY2d at 215-216). Since, excluding the period between August 17, 2005, and August 30, 2005, the total time chargeable to the People was less than six months, the Supreme Court properly denied the defendant's motion to dismiss the indictment.
Our dissenting colleagues point to a period following re-presentation of the case to the grand jury, when the court charged the People with the delay in handing up the new grand jury minutes for inspection. They see no difference, for purposes of CPL 30.30, between that period and the period at issue here. We respectfully disagree.
Following the defendant's arraignment on the new indictment on January 3, 2006, the court adjourned the case to February 15, 2006, for the People to produce the minutes of the re-presentment. The court advised the People specifically that, if they produced the minutes before February 15, 2006, it would attempt to have a decision on the sufficiency of the grand jury evidence on that date. The People, however, did not produce the minutes on or before February 15, 2006, and, on that date, the court adjourned the case to March 13, 2006, ruling that the People would be charged until they produced the minutes. The People did not object, and they filed the minutes on February 23, 2006. By virtue of its ruling, the court found, in effect, that the People's failure to produce the minutes on or before February 15, 2006, actually delayed the case. In stark contrast, there was no finding here that the People's delivery of the original grand jury minutes to the court on August 30, 2005, rather than on August 17, 2005, delayed the case in any respect, and the circumstances establish that it did not. Consequently, inasmuch as the record does not support the conclusion that the period in dispute constituted a postreadiness delay attributable to the People, it was not chargeable pursuant to CPL 30.30.
The defendant's claim that he was denied the effective assistance of counsel is without merit (see People v ...