Opinion
2014-01-8
The PEOPLE, etc., respondent, v. Dru ALLARD, appellant.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Monique Ferrell of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Monique Ferrell of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered June 9, 2010, convicting him of menacing in the second degree as a hate crime (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Parker, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence, and the denial (Walsh, J.), without a hearing, of the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was denied the statutory right to a speedy trial.
ORDERED that the matter is remitted to the Supreme Court, Kings County, to hear and report on the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was denied the statutory right to a speedy trial, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, is to conduct the hearing and file its report with all convenient speed.
The defendant contends that the Supreme Court erred in summarily denying his motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was denied the statutory right to a speedy trial because the People failed to demonstrate, as a matter of law, their entitlement to exclude the period from July 27, 2007, through August 28, 2007. Contrary to the People's contention, the defendant's claim that the summary denial was error is properly preserved for appellate review ( seeCPL 470.05[2]; People v. Hampton, 21 N.Y.3d 277, 284 n. 2, 970 N.Y.S.2d 716, 992 N.E.2d 1059; People v. Prado, 4 N.Y.3d 725, 790 N.Y.S.2d 418, 823 N.E.2d 824).
In felony cases, the People are required to be ready for trial within six months after the commencement of the criminal action ( seeCPL 30.30[1][a]; People v. Headley, 100 A.D.3d 775, 775–776, 954 N.Y.S.2d 121). A defendant seeking dismissal of the indictment on speedy trial grounds under CPL 30.30 meets his or her initial burden on the motion simply by alleging that the People failed to declare readiness within the statutorily prescribed period ( see People v. Beasley, 16 N.Y.3d 289, 292, 921 N.Y.S.2d 178, 946 N.E.2d 166; People v. Goode, 87 N.Y.2d 1045, 1047, 643 N.Y.S.2d 477, 666 N.E.2d 182). “ ‘[O]nce the defendant has shown the existence of a delay greater than six months, the burden of proving that certain periods within that time should be excluded falls upon the People’ ” (People v. Headley, 100 A.D.3d at 776, 954 N.Y.S.2d 121, quoting People v. Berkowitz, 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783; see People v. Santos, 68 N.Y.2d 859, 861, 508 N.Y.S.2d 411, 501 N.E.2d 19; People v. Wearen, 98 A.D.3d 535, 537, 949 N.Y.S.2d 170).
Here, the defendant sustained his initial burden on the motion by alleging that a period of unexcused delay in excess of six months had elapsed since the date that he was arraigned on the felony complaint ( seeCPL 30.30 [1][a] ). In opposition, the People failed to conclusively demonstrate with “ unquestionable documentary proof” that they satisfied that requirement (CPL 210.45[5]; see People v. Stanley, 275 A.D.2d 423, 712 N.Y.S.2d 623; People v. Figaro, 245 A.D.2d 300, 667 N.Y.S.2d 372; People v. Thomas, 210 A.D.2d 736, 620 N.Y.S.2d 555; People v. Boyd, 189 A.D.2d 433, 437, 596 N.Y.S.2d 760; cf. People v. Morgan, 259 A.D.2d 771, 772, 687 N.Y.S.2d 192; People v. Belgrave, 226 A.D.2d 550, 641 N.Y.S.2d 96). Accordingly, the matter must be remitted to the Supreme Court, Kings County, for a hearing on the defendant's motion ( see CPL 210.45[5]; People v. Santos, 68 N.Y.2d at 861, 508 N.Y.S.2d 411, 501 N.E.2d 19; People v. Berkowitz, 50 N.Y.2d at 349, 428 N.Y.S.2d 927, 406 N.E.2d 783; People v. Washington, 82 A.D.3d 1675, 1677, 919 N.Y.S.2d 668; People v. Smith, 245 A.D.2d 534, 666 N.Y.S.2d 44; People v. Mackenzie, 231 A.D.2d 740, 741, 647 N.Y.S.2d 825; People v. Davis, 184 A.D.2d 575, 577–578, 584 N.Y.S.2d 638; People v. Reid, 102 A.D.2d 835, 836, 476 N.Y.S.2d 372).
We decide no other issues at this juncture. SKELOS, J.P., LEVENTHAL, LOTT and COHEN, JJ., concur.