Opinion
2014–582 K CR
01-19-2018
The PEOPLE of the State of New York, Respondent, v. James JENKINS, Appellant.
Appellate Advocates (Joshua M. Levine, Esq.), for appellant. Kings County District Attorney (Leonard Joblove, Ann Bordley and Roger T. Yu of counsel), for respondent.
Appellate Advocates (Joshua M. Levine, Esq.), for appellant.
Kings County District Attorney (Leonard Joblove, Ann Bordley and Roger T. Yu of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ
ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of unlawful possession of marihuana and dismissing that count of the accusatory instrument; as so modified, the judgment of conviction is affirmed.
On January 30, 2013, defendant was arraigned on an accusatory instrument which charged him, insofar as is relevant to this appeal, with unlawful possession of marihuana ( Penal Law § 221.05 ) and failing to stop at a steady red traffic control signal ( Vehicle and Traffic Law § 1111 [d] [1] ). Defendant subsequently moved to dismiss the accusatory instrument on the grounds, among others, that his statutory and constitutional rights to a speedy trial had been violated. By order dated October 21, 2013, the Criminal Court (Matthew A. Sciarrino, Jr., J.) denied the branch of defendant's motion seeking dismissal on statutory speedy trial grounds, finding, among other things, that for the time period of January 30, 2013 to October 21, 2013, only 18 days of delay, all prior to September 17, 2013, were chargeable to the People. The court also denied the branch of defendant's motion seeking dismissal on constitutional speedy trial grounds. Thereafter, defendant's attorney attempted to make an oral motion to dismiss the accusatory instrument on statutory speedy trial grounds, arguing that, following the October 21, 2013 order, more than 30 days of delay had accrued against the People. The Criminal Court instructed defense counsel to make her motion in writing, which counsel never did. Following a nonjury trial held in February 2014, defendant was convicted of the aforementioned charges.
On appeal, defendant contends that the branches of his motion seeking to dismiss the accusatory instrument on the grounds that his statutory and constitutional rights to a speedy trial had been violated should have been granted, and that he received the ineffective assistance of counsel because his trial attorney failed to make a second written motion for dismissal based on additional statutory speedy trial time chargeable to the People which had accrued following the Criminal Court's October 2013 order, which motion would have been successful.
Defendant was charged with unlawful possession of marihuana, a violation and, therefore, the People were required to be ready for trial with respect to that charge within 30 days of the commencement of the action (see CPL 30.30 [1 ] [d] ). It is noted that CPL 30.30 does not apply to traffic infractions and, thus, there is no statutory speedy trial requirement in regard to the charge of failing to stop at a steady red traffic control signal (see People v. Graham , 39 Misc 3d 35, 38 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; People v. Thomas , 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; People v. Ferreira , 22 Misc 3d 32, 33 [App Term, 2d Dept, 2d & 11th Jud Dists 2008] ).
While the Criminal Court properly found that 18 days of delay were chargeable to the People up until September 17, 2013, we find that it should have also found that the 21 days from September 17, 2013 to October 8, 2013 were chargeable to the People. The People's proffered excuse for not being ready from September 17th to October 8th was because the arresting officer had been out sick. However, the People "failed to show that the arresting officer's trial testimony would be evidence material to the People's case' ( CPL 30.30 [4 ] [g] )" ( People v. Morena , 53 Misc 3d 131[A], 2016 NY Slip Op 51372[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ), and, in any event, did not address defendant's argument that the unavailable officer's partner, who had also been present at the incident, could have provided the necessary testimony for the People. Consequently, more than 30 days of delay is chargeable to the People, and, thus, the branch of defendant's motion seeking to dismiss so much of the accusatory instrument as charged him with unlawful possession of marihuana on the ground that his statutory right to a speedy had been violated should have been granted.
Even if the Criminal Court had properly declined to charge the People with the aforementioned 21 days, we note that defendant's conviction of unlawful possession of marihuana should, nevertheless, be vacated inasmuch as defendant received the ineffective assistance of counsel due to his trial attorney's failure to make a second, written statutory speedy trial motion to raise the "clear-cut and completely dispositive" issue that 17 additional days of delay were chargeable to the People during the time period of October 23, 2013 to January 28, 2014 ( People v. Turner , 5 NY3d 476, 481 [2005] ). The record is not complex, and this additional chargeable time is set forth clearly therein (cf. People v. Henderson , 28 NY3d 63, 65 [2016] ; People v. Brunner , 16 NY3d 820, 821 [2011] ). In addition, the People concede, on appeal, that, ultimately, prior to trial, more than 30 days of delay were chargeable to them.
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 NY2d 708, 713 [1998] ; People v. Baldi , 54 NY2d 137, 147 [1981] ; see also People v. Caban , 5 NY3d 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" (see Strickland v. Washington , 466 US 668, 687 [1984] ). In the case at bar, it is clear that the representation defendant received from his trial attorney fell short of an objective standard of reasonableness (see People v. Turner , 5 NY3d at 485 ), and the trial attorney's deficient performance prejudiced the defense (see Strickland v. Washington , 466 US at 687–688 ). Consequently, "[h]aving established that defense counsel failed to make a meritorious statutory speedy trial claim ... defendant ... was denied meaningful representation ... [and s]ince further prosecution on [so much of the accusatory instrument charging defendant with unlawful possession of marihuana] is not possible due to the impermissible [pre-trial] delay, [that count of the accusatory instrument] must be dismissed" ( People v. Devino , 110 AD3d 1146, 1149 [2013] ).
We note that the constitutional right to a speedy trial pursuant to CPL 30.20 applies to the charge of failing to stop at a steady red traffic control signal (see People v. Thomas , 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U], *2). In order to determine whether a defendant was denied his constitutional right to a speedy trial pursuant to CPL 30.20, the following factors must be considered: "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay" ( People v. Taranovich , 37 NY2d 442, 445 [1975] ). In the case at bar, since there was less than one year of delay (see People v. Thomas , 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U], *2; People v. Gordon , 2 Misc 3d 134[A], 2004 NY Slip Op 50190[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2004] ) and defendant did not establish that his defense was impaired by reason of the delay (see People v. Thomas , 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U], *2; People v. Kreinen , 2002 NY Slip Op 40359[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2002] ), defendant failed to establish a sufficient basis to warrant the granting of the branch of his motion brought pursuant to CPL 30.20 (see People v. Taranovich , 37 NY2d at 445 ; People v. Thomas , 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U], *2; People v. Gordon , 2 Misc 3d 134[A], 2004 NY Slip Op 50190[U] ).
Accordingly, the judgment of conviction is modified by vacating so much of the judgment as convicted defendant of unlawful possession of marihuana and dismissing that count of the accusatory instrument.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.