Opinion
7765 & M-5479 Ind. 4781/13
01-24-2019
The PEOPLE of the State of New York, Respondent, v. Gary HARRIS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brent Ferguson of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Alexandra L. Mitter of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Brent Ferguson of counsel), for respondent.
Acosta, P.J., Renwick, Mazzarelli, Gesmer, Singh, JJ.
The court properly denied defendant's speedy trial motion. In a postreadiness situation, delays not attributable to the People are excludable ( People v. Anderson, 66 N.Y.2d 529, 536, 498 N.Y.S.2d 119, 488 N.E.2d 1231 [1985] ). Because defendant elected to proceed pro se, but with standby counsel, the postreadiness delays caused by the unavailability of counsel cannot be attributable to the People, and were thus correctly excluded. We find it unnecessary to decide whether, in a prereadiness situation, a pro se defendant's standby counsel's consent to adjournments qualifies under CPL 30.30(4)(b) in the absence of express personal consent by the defendant. Once the delays relating to counsel are excluded, the remaining periods cited by defendant would not reach the threshold required for dismissal when added to time included by the court. In any event, we also find that these periods are not attributable to the People. Finally, we note that the motion court made express rulings on the relevant issues, and that defendant's procedural arguments are unavailing.
We are advised that, by order dated October 2, 2018, Supreme Court granted defendant's motion to vacate the judgment of conviction pursuant to CPL 440.10. Thus, with respect to the non-speedy trial claims, defendant's direct appeal from the judgment of conviction must be dismissed as moot (see People v. Jackson, 29 A.D.3d 328, 816 N.Y.S.2d 22 [1st Dept. 2006] ).
M–5479 – People v. Gary Harris
Motion to dismiss appeal denied as academic in light of the result reached herein.