Opinion
2017-1514 K CR
12-10-2021
The People of the State of New York, Respondent, v. Bela Garai, Appellant.
Appellate Advocates (Anna Kou of counsel), for appellant. Kings County District Attorney (Leonard Joblove and Julian Joiris of counsel), for respondent.
Unpublished Opinion
Appellate Advocates (Anna Kou of counsel), for appellant.
Kings County District Attorney (Leonard Joblove and Julian Joiris of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Joanne D. Quiñones, J.), rendered April 12, 2017. The judgment convicted defendant, after a nonjury trial, of attempted forcible touching, sexual abuse in the third degree and harassment in the second degree, and imposed sentence.
ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
On March 26, 2016, the People filed a misdemeanor complaint charging defendant with forcible touching (Penal Law § 130.52 [1]), sexual abuse in the third degree (Penal Law § 130.55) and harassment in the second degree (Penal Law § 240.26 [1]), and defendant was arraigned thereon. The court adjourned the case to May 10, 2016 for conversion of the misdemeanor complaint to an information. On May 10th, the People served and filed a supporting deposition and the court adjourned the case to June 16, 2016 for discovery. On June 16th, the People filed and served discovery, and the court adjourned the case to September 8, 2016. On September 8th, the People stated that they were not ready for trial because the complaining witness was not available and the case was adjourned to October 27, 2016. At the proceeding on October 27, 2016, the People informed the court that the arresting officer was not available and the prosecutor on the case was out sick. The People requested a 14-day adjournment to November 10, 2016. Defense counsel requested an adjournment to sometime during the week of December 5, 2016. The court adjourned the case to December 13, 2016. On December 13th, the interpreter was absent and the court adjourned the case to February 27, 2017 for trial. The minutes of February 27, 2017 indicate that the People announced their readiness for trial.
Following a nonjury trial, defendant was found guilty of attempted forcible touching (Penal Law §§ 110.00, 130.52 [1]), sexual abuse in the third degree (Penal Law § 130.55) and harassment in the second degree (Penal Law § 240.26 [1]).
On appeal, defendant contends, among other things, that his counsel was ineffective because she failed to make a motion to dismiss on statutory speedy trial grounds.
The People concede that there is no written statement of readiness in the court file and there was no oral statement of readiness which appears in any of the minutes contained in the record other than a statement of readiness that was made on February 27, 2017. However, the People now claim that the court stenographer made an "error perhaps" transcribing the proceedings on May 10, 2016, in that the minutes thereof fail to contain a statement of readiness for trial because the stenographer inadvertently substituted the phrase "corroborating affidavit" for the closely associated phrase "People are ready" or words to that effect.
To be entitled to relief under the New York State Constitution on the ground of ineffective assistance of counsel, a defendant must establish that his counsel did not provide him with meaningful representation (see People v Benevento, 91 N.Y.2d 708, 713 [1998]; People v Baldi, 54 N.Y.2d 137, 147 [1981]; see also People v Caban, 5 N.Y.3d 143, 152 [2005]). Under the federal standard of review, a "defendant must show that counsel's performance was deficient... [and] that the deficient performance prejudiced the defense" (Strickland v Washington, 466 U.S. 668, 687 [1984]).
Since defendant was initially charged with class A misdemeanors, the People were required to be ready for trial within 90 days of the commencement of the action (see CPL 30.30 [1] [b]; see also People v Lomax, 50 N.Y.2d 351, 356 [1980]). Once a defendant has shown the existence of a delay greater than 90 days, the burden of showing that certain periods of time should be excluded falls on the People (see People v Brown, 28 N.Y.3d 392, 403 [2016]; People v Luperon, 85 N.Y.2d 71, 81 [1995]; People v Berkowitz, 50 N.Y.2d 333, 349 [1980]).
The People cannot assert their readiness to proceed to trial until there is an accusatory instrument sufficient for trial (see People v Colon, 59 N.Y.2d 921 [1983], revg 122 Misc.2d 790 [App Term, 1st Dept 1982] for reasons stated in 110 Misc.2d 917 [Crim Ct, NY County 1981] [the People cannot be ready on an unconverted misdemeanor complaint]; see also People v Wilson, 86 N.Y.2d 753, 754-755 [1995] [the People were ready for trial once they had "possessed a valid accusatory instrument"]; People v Caussade, 162 A.D.2d 4, 8 [1990] ["present readiness for trial is established when the People have a valid accusatory instrument upon which the defendant may be brought to trial"]; People v Reyes, 70 Misc.3d 133 [A], 2020 NY Slip Op 51569[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]).
Here, the action commenced on March 26, 2016 with the filing of the misdemeanor complaint (see CPL 100.05). The 45-day period from March 26, 2016 to May 10, 2016 is chargeable to the People, as they concede. Since the People had not previously declared their readiness for trial, the 49 days from September 8, 2016, when they stated they were not ready for trial, to October 27, 2016 are chargeable to the People, as this time is not excludable as a delay caused by court scheduling (see People v Smith, 82 N.Y.2d 676, 678 [1993]; People v Kendzia, 64 N.Y.2d 331, 337 [1985]; People v Tavarez, 147 A.D.2d 355, 356 [1989]; People v Green, 90 A.D.2d 705, 706 [1982]) or an adjournment made at the request or consent of defendant (see CPL 30.30 [4] [b]). Moreover, the People's claim that, on May 10, 2016, the court stenographer had made an "error perhaps" in failing to record an announcement of readiness for trial, is unavailing and unsupported by the record by which we are bound (see People v Prior, 4 N.Y.2d 70, 73 [1958]). We note that the Criminal Court's action sheet does not show that the People made any such announcement of readiness for trial on May 10th. In view of the foregoing, we need not consider the remaining challenged time, since defendant has established that more that 90 days are chargeable to the People.
As the People exceeded the 90-day statutory limit, defense counsel's failure to move to dismiss the information based upon the People's noncompliance with the statutory speedy trial requirement was sufficiently egregious to constitute the denial of meaningful representation (see People v Devino, 110 A.D.3d 1146, 1149 [2013]; People v Jackson, 172 A.D.2d 874, 875 [1991]; People v Jenkins, 58 Misc.3d 150 [A], 2018 NY Slip Op 50088[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Since further prosecution on this information is not possible due to the impermissible statutory speedy trial delay, the information must be dismissed (see People v Devino, 110 A.D.3d at 1149; People v Jenkins, 58 Misc.3d 150 [A], 2018 NY Slip Op 50088[U], *2).
In view of the foregoing, we pass on no other issue.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.