Opinion
2015-04-28
The PEOPLE of the State of New York, Respondent, v. Gene GNESIN, Defendant–Appellant.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
TOM, J.P., SWEENY, MANZANET–DANIELS, CLARK, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Tandra L. Dawson, J. at speedy trial motion; Juan M. Merchan, J. at hearing, nonjury trial and sentencing), rendered April 10, 2013, convicting defendant of attempted assault in the third degree and attempted endangering the welfare of a child, and sentencing him to a conditional discharge, unanimously affirmed.
The court properly denied defendant's speedy trial motion. The certificate of readiness filed by the People was not illusory ( see People v. Sibblies, 22 N.Y.3d 1174, 1180, 985 N.Y.S.2d 474, 8 N.E.3d 852 [2012]; People v. Brown, 126 A.D.3d 516, 7 N.Y.S.3d 19, 2015 N.Y. Slip Op. 02042 [1st Dept.2015] ). The record supports the inference that even if the People might have preferred to call an uncooperative complainant as a witness, they were always prepared to proceed without her by relying on other evidence, as they ultimately did.
The court providently exercised its discretion in reopening the suppression hearing, after both sides had rested and presented oral argument but before any decision had been rendered, to allow the People to introduce additional testimony ( see People v. McCorkle, 111 A.D.3d 557, 977 N.Y.S.2d 2 [1st Dept.2013], lv. denied24 N.Y.3d 963, 996 N.Y.S.2d 222, 20 N.E.3d 1002 [2014] ). Since the reopening occurred before the court had ruled on the motion, the restrictions on rehearings set forth in People v. Kevin W., 22 N.Y.3d 287, 289, 980 N.Y.S.2d 873, 3 N.E.3d 1121 (2013) and People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269 (1978) do not apply.