Seymour W. James, Jr., New York, NY (Cheryl P. Williams of
counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, Roni C. Piplani, and Meredith
D'Angelo of counsel), for respondent.
C. BALKIN, J.P. L. PRISCILLA HALL ROBERT J. MILLER HECTOR D.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Queens
County (Lewis, J.), rendered July 6, 2011, convicting him of
assault in the second degree and criminal possession of a
weapon in the fourth degree, after a nonjury trial, and
that the judgment is affirmed.
defendant was arraigned on a felony complaint on September
12, 2009. On November 12, 2009, the People filed a
certificate of readiness, but the matter was adjourned
multiple times at the People's request until the
defendant filed a motion on December 22, 2010, pursuant to
CPL 30.30 to dismiss the indictment for violation of his
statutory right to a speedy trial. The motion was denied
without a hearing.
to CPL 30.30(1)(a), the Supreme Court must grant a motion to
dismiss an indictment charging a felony offense where the
People are not ready for trial within six months after the
commencement of the criminal action, which, in this case,
consists of a period of 181 days. Once the People announce
that they are ready for trial, postreadiness delay is
chargeable to them only "when the delay is attributable
to their inaction and directly implicates their ability to
proceed" (People v Carter, 91 N.Y.2d 795, 799;
see People v Anderson, 66 N.Y.2d 529, 534-536).
Therefore, with respect to postreadiness delay, in contrast
to prereadiness delay, "any period of an adjournment in
excess of that actually requested by the People is
excluded" (People v Young, 110 A.D.3d 1107,
1107-1108; see People v Lynch, 103 A.D.3d 919, 920).
defendant does not dispute the Supreme Court's conclusion
that, applying postreadiness rules to the delay that occurred
after November 12, 2009, so as to exclude any period of an
adjournment in excess of that actually requested by the
prosecutor, the People were ready within the statutorily
prescribed time period. Rather, the defendant challenges the
court's conclusion that postreadiness rules were
applicable because, the defendant contends, the November 12,
2009, statement of readiness was illusory. The People do not
dispute that, if they were chargeable with all of the
adjourned time under prereadiness rules, they would have
exceeded 181 days.
be effective, a statement of readiness must be
communicated... at a time when the People are truly ready to
proceed" (People v Carter, 91 N.Y.2d at 798;
see People v Chavis, 91 N.Y.2d 500, 505; People
v Kendzia, 64 N.Y.2d 331, 337). "A statement of
readiness at a time when the People are not actually ready is
illusory and insufficient to stop the running of the speedy
trial clock" (People v England, 84 N.Y.2d 1,
4). The People's statement of readiness is presumed to be
correct, "[i]n the absence of proof that the readiness
statement did not accurately reflect the People's
position" (People v Carter, 91 N.Y.2d at 799;
see People v Caussade, 162 A.D.2d 4, 12; see
also People v Sibblies, 22 N.Y.3d 1174, 1180 [Graffeo,
there is no evidence in the record that the People's
announcement of readiness on November 12, 2009, was not made
in good faith or did not reflect an actual present state of
readiness (see People v Brown, ____N.Y.3d____, 2016
NY Slip Op 08482 ; People v Santana, 233
A.D.2d 344, 345; People v Tavarez, 147 A.D.2d 355,
356). Accordingly, the Supreme Court properly denied the
defendant also argues that his adjudication as a second
violent felony offender was improper because when he pleaded
guilty to a prior charge of robbery in the second degree in
Kings County, he was not advised that a period of postrelease
supervision would be part of the sentence imposed.
Accordingly, the defendant argues that his plea of guilty was
not knowingly, voluntarily, and intelligently made, and it
could not serve as a predicate violent felony conviction. The
record demonstrates that the defendant was given an
opportunity to challenge the constitutionality of this prior
conviction at the time of his sentencing, however, he ...