Opinion
01-30-2024
The PEOPLE, etc., EX REL. Jose L. NIEVES, on behalf of Kadeem Anderson, petitioner, v. Lynelle MAGINLEY-LIDDIE, etc., respondent.
Jose L. Nieves, Bayside, NY, petitioner pro se. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, Jacob Bentley, and Samuel Pellegrino of counsel), for respondent.
Jose L. Nieves, Bayside, NY, petitioner pro se.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, Jacob Bentley, and Samuel Pellegrino of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, LARA J. GENOVESI, LAURENCE L. LOVE, JJ.
DECISION & JUDGMENT
Writ of habeas corpus in the nature of an application to release Kadeem Anderson upon his own recognizance pursuant to CPL 30.30(2)(a) or, in the alternative, to set reasonable bail upon Queens County Indictment No. 73697/2022.
ADJUDGED that the writ is dismissed, without costs or disbursements.
[1–4] "Where, as here, a defendant is being held in custody on a felony, the defendant is subject to release if the People are not ready for trial within ‘ninety days from the commencement of his or her commitment’ " (People ex rel. Hereth v. Franchi, 214 A.D.3d 932, 933, 186 N.Y.S.3d 296, quoting CPL 30.30[2][a]). "When making a motion pursuant to CPL 30.30(2)(a) to be released on bail or his or her own recognizance, a defendant who has been committed to the custody of the sheriff has the initial burden of demonstrating, by sworn allegations of fact, that there has been an inexcusable delay beyond the time set forth in the statute. Once a defendant has alleged that more than the statutorily prescribed time has elapsed without a declaration of readiness by the People, the People bear the burden of establishing sufficient excludable delay" (People ex rel. Nieves v. Molina, 207 A.D.3d 797, 798, 171 N.Y.S.3d 389 [citation omitted]; see People v. Santos, 68 N.Y.2d 859, 508 N.Y.S.2d 411, 501 N.E.2d 19; People v. Berkowitz, 50 N.Y.2d 333, 348– 349, 428 N.Y.S.2d 927, 406 N.E.2d 783; People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787, 153 N.Y.S.3d 194). The People also bear the burden of "ensur[ing], in the first instance, that the record of the proceedings … is sufficiently clear to enable the court considering the … CPL 30.30 motion to make an informed decision as to whether the People should be charged with any delay" (People ex rel. Nieves v. Molina, 207 A.D.3d at 798, 171 N.Y.S.3d 389 [internal quotation marks omitted]; see People v. Cortes, 80 N.Y.2d 201, 215– 216, 590 N.Y.S.2d 9, 604 N.E.2d 71). "After the People identify the exclusions on which they intend to rely[,] … the defense must identify any legal or factual impediments to the use of these exclusions" (People v. Henderson, 120 A.D.3d 1258, 1258, 992 N.Y.S.2d 140 [internal quotation marks omitted], affd 28 N.Y.3d 63, 41 N.Y.S.3d 464, 64 N.E.3d 284).
[5, 6] Despite the petitioner’s contention to the contrary, the Supreme Court correctly determined that the People are not chargeable with any of the time period from July 20, 2023, when the matter was calendared for the defendant’s new counsel to appear with him in court to select a date for a pretrial suppression hearing, to September 11, 2023, the adjourned date for the hearing, regardless of whether the People were ready on July 20, 2023 (see People v. Harvey, 214 A.D.3d 672, 673, 182 N.Y.S.3d 910; People v. Cox, 161 A.D.3d 1100, 1101, 77 N.Y.S.3d 455). The court also correctly charged the People with only the one day of adjournment that they requested on September 11, 2023, rather than the entirety of the adjournment period granted, to September 27, 2023, since, " ‘[a]s to periods of delay that occur following the People’s statement of readiness, any period of an adjournment in excess of that actually requested by the People is excluded’ " (People v. Brown, 28 N.Y.3d 392, 404, 45 N.Y.S.3d 320, 68 N.E.3d 45, quoting People v. Boumoussa, 104 A.D.3d 863, 863, 961 N.Y.S.2d 297; see People v. Cantoni, 140 A.D.3d 782, 785, 34 N.Y.S.3d 454; People v. Owens, 138 A.D.3d 1035, 1035, 28 N.Y.S.3d 630).
[7] Moreover, contrary to the petitioner’s contention, the People are not chargeable with the time period of an extension granted to them by the Supreme Court to submit written argument after the suppression hearing. Where the People seek and receive an extension of time to respond to a motion made by the defendant, they are not chargeable with that period of time (see People ex rel. Nieves v. Molina, 207 A.D.3d 797, 171 N.Y.S.3d 389). Although the People are chargeable with their one-day delay in requesting the extension, they are not thereby chargeable with more than 90 days of delay in bringing the defendant to trial on Queens County Indictment No. 73697/2022 (see CPL 30.30[2][a]).
Accordingly, the petitioner failed to demonstrate entitlement to relief pursuant to CPL 30.30(2)(a).
There is no basis in the record on which to conclude that the determination of the Supreme Court violated "constitutional or statutory standards" (People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 499, 307 N.Y.S.2d 207, 255 N.E.2d 552; see People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 422 N.Y.S.2d 55, 397 N.E.2d 745; People ex rel. Steinagle v. Howard, 204 A.D.3d 1491, 1492, 165 N.Y.S.3d 766; People ex rel. Siegel v. Sielaff, 182 A.D.2d 389, 390, 582 N.Y.S.2d 131; People ex rel. Mordkofsky v. Stancari, 93 A.D.2d 826, 827, 460 N.Y.S.2d 830).
CONNOLLY, J.P., CHAMBERS, GENOVESI and LOVE, JJ., concur.