Calendar Date: September 6, 2013
Eugene P. Grimmick, Troy, for appellant.
Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), for respondent.
Before: Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Rensselaer County (Ceresia, J.), rendered December 20, 2010, upon a verdict convicting defendant of the crime of criminal possession of stolen property in the fourth degree.
Following an October 2008 break-in at a home, during which a television and other property was stolen, defendant was charged by a January 2010 indictment with the crimes of burglary in the second degree, grand larceny in the fourth degree and criminal possession of stolen property in the fourth degree. Defendant moved to dismiss the indictment on statutory speedy trial grounds. County Court denied defendant's motion and his later motion for reconsideration. After a jury trial, defendant was acquitted of the burglary and larceny charges but was convicted of criminal possession of stolen property in the fourth degree. County Court sentenced him to a term of 1⅓ to 4 years in prison. Defendant appeals.
County Court erred in denying defendant's motion to dismiss the indictment on statutory speedy trial grounds. Where a defendant is accused of a felony, the People must be ready for trial within six months of the commencement of a criminal action (see CPL 30.30  [a]; People v Jacobs, 45 A.D.3d 883, 883-884 , lv denied 9 N.Y.3d 1035 ). That six-month period is calculated "'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'" (People v Pope, 96 A.D.3d 1231, 1232 , lv denied 20 N.Y.3d 1064 , quoting People v Cortes, 80 N.Y.2d 201, 208 ; see People v Fehr, 45 A.D.3d 920, 922 , lv denied 10 N.Y.3d 764 ). Although CPL 30.30 (4) (a) requires the exclusion of "a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to... [a] trial of other charges" (CPL 30.30  [a]), the People bear the burden of establishing "their entitlement to exclude any prereadiness delays from the calculation under a CPL 30.30 motion" and, as such, must "ensure that the record is sufficiently clear as to who is chargeable for" a delay (People v Robinson, 67 A.D.3d 1042, 1044 , lv denied 13 N.Y.3d 910 ; see People v Collins, 82 N.Y.2d 177, 181-182 ; People v Seamans, 85 A.D.3d 1398, 1399 ; People v Stewart, 57 A.D.3d 1312, 1314 , lv denied 12 N.Y.3d 788 , cert denied 558 U.S. 1116 ; see also People v Moulton, 172 A.D.2d 1001, 1001-1002 ).
Here, while other periods of time were at issue before County Court, the time that is dispositive to defendant's speedy trial claim is the 112-day period from March 27, 2009 — the date of defense counsel's entry into the case — until defendant's July 17, 2009 written waiver of his right to a speedy trial. In opposition to defendant's motion to dismiss, the People noted that another criminal action was pending against defendant in Albany County at the time that this action was commenced and asserted that, "in conferring with defendant's new counsel [after March 27, 2009], it was agreed and understood that no action would be taken to obtain an indictment in the instant matter while counsel for  defendant endeavored to obtain a favorable plea disposition in the Albany County matter." Despite "conced[ing] that the better practice would be to encompass the understanding of the parties in a stipulation, letter or other written instrument, " the People argued that the delay from March 27 until July 17 should be excluded from the speedy trial calculation pursuant to CPL 30.30 (4) (a). County Court excluded that time, finding that "the record indicates that" the parties reached an agreement as asserted by the People.
We disagree. There is no support in the record for the People's unsubstantiated claim that "it was agreed and understood" that defendant consented to an adjournment or waiver from March 27, 2009 until July 17, 2009. "Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay" (People v Smith, 82 N.Y.2d 676, 678 ; see People v Battaglia, 187 A.D.2d 808, 810 ). "While a defendant may waive rights under CPL 30.30, the record here contains no evidence of any waiver, written or oral, " and the Court of Appeals has made clear that "prosecutors would be well advised to obtain unambiguous written waivers in situations like these" (People v Dickinson, 18 N.Y.3d 835, 836  [internal quotation marks and citation omitted]). As the People failed to meet their burden of proving that the disputed 112-day period was not chargeable to them (see People v Collins, 82 N.Y.2d at 181-182; People v Seamans, 85 A.D.3d at 1400; People v Wiggins, 197 A.D.2d 802, 804 ; People v Moulton, 172 A.D.2d at 1001-1002; compare People v Crogan, 237 A.D.2d 745, 745-746 , lv denied 90 N.Y.2d 857 ), the People did not establish that they were ready for trial within the statutory six-month period (see CPL 30.30  [a]). Therefore, defendant was entitled to dismissal of the indictment pursuant to CPL 30.30.
Considering our resolution of this issue, defendant's remaining arguments are academic.
Lahtinen, J.P., Stein and Egan Jr., JJ., concur.
ORDERED that the judgment is reversed, on the law, and ...