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The People of the State of New York v. Rosemary Cook

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


January 20, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ROSEMARY COOK, APPELLANT.

Appeal from judgments of the District Court of Nassau County, First District (Norman St. George, J.), rendered July 15, 2008.

People v Cook (Rosemary)

Decided on January 20, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on January 20, 2011

PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ

The judgments convicted defendant, upon a jury verdict, of driving while intoxicated per se and failing to obey a traffic signal.

ORDERED that so much the appeal as is from the judgment convicting defendant of failing to obey a traffic signal is dismissed as abandoned; and it is further,ORDERED that the judgment convicting defendant of driving while intoxicated per se is affirmed.

After the jury had found defendant guilty of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]), and before sentencing, defendant submitted a pro se motion, pursuant to CPL 330.30, alleging the violation of her statutory right to a speedy trial (see CPL 30.30) and the ineffectiveness of trial counsel in failing timely to assert the claim. The People opposed the motion on the sole ground that it was untimely (see CPL 170.30 [1] [e]; 170.30 [2]; People v Lawrence, 64 NY2d 200, 204 [1984]). The District Court, invoking the rule against hybrid representation (People v Garcia, 69 NY2d 903 [1987]; People v Pitcher, 182 AD2d 878, 879 [1992]), submitted the motion to defense counsel for review. Defense counsel, acknowledging that prior to the trial, he and defendant had discussed the question of whether to move to dismiss the accusatory instrument charging defendant with driving while intoxicated per se on the ground that defendant's statutory speedy trial right had been violated, declined to adopt the motion, and the District Court thereafter refused to address the motion's merits. Defendant, now represented by new counsel, appeals from the judgment of conviction, alleging, among other matters, the ineffective assistance of trial counsel in failing to advance the speedy trial claim prior to trial and to adopt her posttrial motion, and that the court should have entertained the motion.

The threshold question is whether the holding in People v LaFontaine (92 NY2d 470 [1998]) that, as a general rule, an appellate court may not address issues not adjudicated adversely to an appealing party, precludes this court's review of the merits of the subject motion, which motion was not entertained by the trial court. In our opinion, we are not precluded from considering the contentions raised on appeal, involving the ineffective assistance of counsel and the court's alleged error in not reaching the motion, since such issues may be raised for the first time on appeal based on the existing record and without the necessity of a motion and hearing in the trial court.

Where, as here, the highest charge is an unclassified misdemeanor, a statutory speedy trial claim is established, prima facie, upon sworn allegations that the People did not declare their trial readiness within 90 days of the commencement of the proceedings (CPL 30.30 [1] [b]; see People v South, 29 Misc 3d 92 [App Term, 9th & 10th Jud Dists 2010]), here, on April 22, 2006. On appeal, the People purport to concede 88 days of pre- and post-readiness chargeable time. This court is not bound by concessions that are contrary to law (People v Berrios, 28 NY2d 361, 366-367 [1971]; People v Gates, 70 AD2d 734 [1979]; People v Rojas, 2 Misc 3d 130[A], 2004 NY Slip Op 50101[U] [App Term, 1st Dept 2004]), and our analysis of the merits of defendant's statutory speedy trial claim is as follows:

The 12-day period until May 4, 2006, when defendant made off-calendar motions, is chargeable to the People (People v Owens, 209 AD2d 549, 550 [1994]; People v Garrett, 182 AD2d 496, 497 [1992]; People v Elm, 25 Misc 3d 141[A], 2009 NY Slip Op 52459[U] [App Term, 9th & 10th Jud Dists 2009]). The subsequent adjournments, until August 4, 2006, concerned excludable discovery, motion practice, and adjournments at defendant's request (CPL 30.30 [4] [a]; People v Worley, 66 NY2d 523, 527 [1985]). On August 4, 2006, the District Court established a submissions schedule, requiring the People to submit their response to the latest of defendant's motions by September 11, 2006, and adjourned the matter to October 23, 2006 for decision on the motions. The People failed to submit their response on September 11, 2006, and on September 18, 2006, without explaining their default of the motion schedule, they petitioned the court for additional time, until September 25, 2006, to submit their response. The court granted the request, but the People failed to submit their responding papers until October 9, 2006. The 28-day period, from September 11, 2006 until October 9, 2006, is chargeable to the People (People v Delosanto, 307 AD2d 298 [2003]; People v Gonzalez, 266 AD2d 562 [1999]; cf. People v Anderson, 216 AD2d 309 [1995]).

The court did not issue a decision on the motions on October 23, 2006, and the subsequent adjournments, until April 9, 2007 when the People declared their readiness for trial, are not chargeable to them, as the adjournments were excludable for the court's decision on the motions (CPL 30.30 [4] [a]; People ex rel. Latta v Morgenthau, 73 AD3d 593 [2010]; People v Gonzalez, 266 AD2d 562), and to allow the People a reasonable opportunity to prepare both for the January 5, 2007 suppression hearing and the trial. The trial was initially scheduled for March 5, 2007, but was postponed owing to defense counsel's unavailability (CPL 30.30 [4] [f]; People v Clark, 11 AD3d 706 [2004]; People v Forbes, 7 AD3d 473, 474 [2004]). The subsequent adjournments, until July 17, 2007, are not chargeable to the People as they were due either to defense counsel's unavailability or to his indisposition (CPL 30.30 [4] [f]). However, on July 17, 2007, and again on August 13, 2007, the People declared they were not ready for trial, and on the latter date, requested an adjournment, until August 27, 2007. This 41-day period is chargeable to the People, raising their total chargeable time to 81 days.

The subsequent adjournments of the trial, until December 4, 2007, are not chargeable to the People as they were either at defendant's request, the People having reasserted their trial readiness (CPL 30.30 [4] [b]; People v Worley, 66 NY2d at 528), or resulted from the unavailability of the People's principal witness due to a medical emergency (People v Goodman, 41 NY2d 888, 889 [1977]; People v Alcequier, 15 AD3d 162, 163 [2005]; People v Lee, 217 AD2d 637, 638 [1995]). The remaining pretrial adjournments occurred because defense counsel was engaged in another proceeding or was hospitalized (CPL 30.30 [4] [f]; People v Clark, 11 AD3d 706). As no additional time is chargeable to the People, defendant was not denied her statutory right to a speedy trial and, thus, counsel was not ineffective in failing to assert this claim. We have considered defendant's claims with respect to the alleged additional derelictions of counsel and find them to be without merit.

Defendant's contention, that the admission of certified Intoxilyzer maintenance and calibration documents as business records (see CPLR 4518 [a]) violated defendant's confrontation rights, lacks merit (see People v Lent, 29 Misc 3d 14 [App Term, 9th & 10th Jud Dists 2010]; People v Lebrecht, 13 Misc 3d 45 [App Term, 9th & 10th Jud Dists 2006]).

Finally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Mateo, 2 NY3d 383 [2004]). Upon our review of the evidence, we are satisfied that the verdict of guilt is not against the weight of the evidence (People v Romero, 7 NY3d 633 [2006]).

Accordingly, the judgment convicting defendant of driving while intoxicated per se is affirmed.

Nicolai, P.J., and LaCava, J., concur.

Tanenbaum, J., dissents in part and concurs in part in a separate memorandum.

Tanenbaum, J., dissents in part and concurs in part and votes to dismiss so much of the appeal as is from the judgment convicting defendant of failing to obey a traffic signal and to reverse the judgment convicting defendant of driving while intoxicated per se and to dismiss the accusatory instrument alleging that offense, in the following memorandum:

While I concur in the dismissal as abandoned of so much of the appeal as is from the judgment convicting defendant of failing to obey a traffic signal, I would reverse the judgment convicting defendant of driving while intoxicated per se and dismiss the accusatory instrument alleging that offense. The People conceded 88 days of pre- and post-readiness pretrial delay, including the period from October 9, 2006 until October 23, 2006. When these 88 days are added to the remaining periods of delay properly found chargeable by the majority, the People exhausted their statutory speedy trial time. Trial counsel's failure to move to dismiss the accusatory instrument on this ground deprived defendant of the effective assistance of counsel requiring that the judgment of conviction be reversed and the accusatory instrument dismissed (People v Garcia, 33 AD3d 1050, 1052 [2006]; People v Courtney, 249 AD2d 485, 486 [1998]).

Decision Date: January 20, 2011

20110120

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