Opinion
2011-09-30
The PEOPLE of the State of New York, Appellant,v.Deshaun FULMER, Defendant–Respondent.
Appeal from an order of the Onondaga County Court (Joseph E. Fahey, J.), dated July 7, 2010. The order granted the motion of defendant to dismiss the first superceding indictment.William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for appellant.Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for defendant-respondent.MEMORANDUM:
The People appeal from an order granting defendant's motion to dismiss the first superseding indictment on statutory speedy trial grounds ( see CPL 30.30[1][a] ). We agree with the People that defendant's statutory speedy trial rights were not violated and thus that reversal is required. The People declared their readiness for trial within six months of the filing of the first accusatory instrument ( see CPL 30.30[1][a]; see generally People v. Carter, 91 N.Y.2d 795, 798, 676 N.Y.S.2d 523, 699 N.E.2d 35). County Court granted defendant's motion to dismiss the first superseding indictment on the ground that the People were charged with periods of postreadiness delay when they failed to act for a period of at least three weeks in obtaining a second saliva sample from defendant for DNA testing upon realizing that the first sample had been erroneously destroyed. “[P]ostreadiness delay may be charged to the People when the delay is attributable to their inaction and directly implicates their ability to proceed to trial” ( Carter, 91 N.Y.2d at 799, 676 N.Y.S.2d 523, 699 N.E.2d 35). Here, the absence of the DNA sample did not implicate the People's ability to proceed to trial inasmuch as the People remained ready to proceed to trial even in the absence of the DNA test results ( see People v. Wright, 50 A.D.3d 429, 430, 855 N.Y.S.2d 475, lv. denied 10 N.Y.3d 966, 863 N.Y.S.2d 150, 893 N.E.2d 456; People v. Bargerstock, 192 A.D.2d 1058, 596 N.Y.S.2d 611, lv. denied 82 N.Y.2d 751, 603 N.Y.S.2d 992, 624 N.E.2d 178).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, the motion is denied, the first superseding indictment is reinstated and the matter is remitted to Onondaga County*898 Court for further proceedings on that indictment.
CENTRA, J.P., FAHEY, SCONIERS, GREEN, and MARTOCHE, JJ., concur.