Calendar Date: February 22, 2018
J. Connolly, Delmar, for appellant.
David Soares, District Attorney, Albany (Michael C. Wetmore
of counsel), for respondent.
Before: Garry, P.J., McCarthy, Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Albany County (Lynch,
J.), rendered December 17, 2015, upon a verdict convicting
defendant of the crimes of criminal possession of a
controlled substance in the third degree and criminal
possession of a controlled substance in the fourth degree.
was charged in an indictment with offenses relating to, among
other things, an August 2014 incident wherein he possessed
and intended to sell crack cocaine to a confidential
informant. Following a jury trial, he was convicted of
criminal possession of a controlled substance in the third
degree and criminal possession of a controlled substance in
the fourth degree due to the August 2014 incident. County
Court sentenced defendant, as a second felony drug offender,
to an aggregate prison term of seven years to be followed by
postrelease supervision of three years. Defendant now
reverse. "The People are obliged to declare their
readiness for a felony trial within six months of the
commencement of a criminal action, a period that is
'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
Rousaw, 151 A.D.3d 1179, 1179 , quoting People
v Cortes, 80 N.Y.2d 201, 208 ; see CPL
30.30  [a]; People v Barden, 27 N.Y.3d 550, 553
). Defendant moved to dismiss the indictment on
statutory speedy trial grounds and argued that, although the
People declared readiness for trial in a timely manner, they
subsequently obtained a three-week adjournment of the trial
that was not excludable and pushed them over the six-month
limit. The People adequately set forth "the cause of
[this postreadiness] adjournment" in their opposing
affirmation and at a hearing on defendant's motion,
stating that they needed to secure the testimony of a police
detective about his role in the investigation but could not
do so at the trial as originally scheduled due to his
mandatory involvement in a training program (People v
Stirrup, 91 N.Y.2d 434, 440 ; see People v
Liotta, 79 N.Y.2d 841, 843 ; People v
Alcequier, 15 A.D.3d 162, 163 , lv denied
4 N.Y.3d 851');">4 N.Y.3d 851 ).
is excluded from chargeable time if caused by extraordinary
circumstances where "the People for practical reasons
beyond their control cannot proceed with a legally viable
prosecution" (People v Price, 14 N.Y.3d 61, 64
; see CPL 30.30  [b];  [g]; People v
Zirpola, 57 N.Y.2d 706, 708 ). "The
unavailability of a prosecution witness may be a sufficient
justification for delay, provided that the People attempted
with due diligence to make the witness available"
(People v Zirpola, 57 N.Y.2d at 708 [citations
omitted]; see CPL 30.30  [b];  [g] [i];
People v Ricart, 153 A.D.3d 421, 422 ;
People v Thompson, 118 A.D.3d 922, 923 ).
County Court heard testimony from the witness with regard to
the mandatory training program, and he stated that he did not
know how often the training was offered and did not try to
resolve the scheduling conflict between the training and the
trial aside from telling the prosecutor about it. The witness
further testified that he could miss up to 12 hours of the
training program and that he would have tried to make
arrangements if he had been directed to testify on a certain
date. The People, in contrast, knew that the training was
locally offered twice a year and did not set forth any effort
on their part to learn whether the witness could switch to
another training offering or work around the scheduled
training prior to seeking the adjournment. Due diligence
requires the People to undertake "'credible,
vigorous activity' to make the witness available"
and, inasmuch as that effort is totally lacking here, the
adjournment was not motivated by extraordinary circumstances
so as to exclude it from the time chargeable to the People
(People v Figaro, 245 A.D.2d 300, 300 ,
quoting People v Washington, 43 N.Y.2d 772, 774
; see People v Ricart, 153 A.D.3d at 422;
People v Allard, 128 A.D.3d 1081, 1082 ,
affd 28 N.Y.3d 41');">28 N.Y.3d 41 ; People v Robbins,
223 A.D.2d 735, 737 , lvs denied 88 N.Y.2d
940, 941 ).
People suggest, in the alternative, that defense counsel
consented to the adjournment when he offered his condolences
to the prosecutor for a recent loss in her family and told
her to ask if her family situation required accommodation
(see CPL 30.30  [b]). It suffices to say that an
offer to consider accommodating the People for one reason did
not "clearly express" defense counsel's
consent to an adjournment sought without his knowledge for an
unrelated reason (People v Smith, 82 N.Y.2d 676, 678
; see People v Liotta, 79 N.Y.2d at 843;
People v Miller, 113 A.D.3d 885, 887-888 ).
Thus, the time properly charged to the People exceeded 180
days, defendant's statutory right to a speedy trial was
violated and his motion to dismiss the indictment on that
basis should have been granted.
remaining contentions are academic.
P.J., McCarthy, Mulvey and Rumsey, JJ., concur.
that the judgment is reversed, on the law, and ...