Opinion
December 11, 2002.
Appeal from a judgment of Jefferson County Court (Martusewicz,.), entered August 6, 2001, convicting defendant after a jury trial, inter alia, criminal possession of a forged instrument in the degree (two counts).
BURGIO, WATERTOWN, FOR DEFENDANT-APPELLANT.
F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (ANTHONY M. NEDDO OF), FOR PLAINTIFF-RESPONDENT.
Before: PIGOTT, JR., P.J., GREEN, PINE, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and same hereby is unanimously reversed on the law, the motion is, the indictment is dismissed and the matter is remitted to County Court for proceedings pursuant to CPL 470.45.
Memorandum:
Defendant appeals from a judgment convicting him a jury trial of criminal possession of a forged instrument in second degree (two counts) (Penal Law § 170.25), grand larceny in third degree (§ 155.35), criminal possession of stolen property in third degree (§ 165.50), grand larceny in the fourth degree (§ .30 [1]), and criminal possession of stolen property in the fourth(§ 165.45 [1]). Defendant contends that County Court erred in denying his motion to dismiss the indictment because he was denied his right to a speedy trial pursuant to CPL 30.30. We agree.
The criminal action was commenced by the filing of a felony on May 31, 2000, and it is undisputed that the People did announce their readiness for trial until defendant's arraignment December 18, 2000, 201 days later. In denying defendant's motion, court agreed with the People that the 64-day period from June 27, to August 29, 2000 was not chargeable to them under CPL 30.30 (4)(b) because defendant had consented to the adjournment. That was. CPL 30.30(4)(b) provides in relevant part that, "[i]n the time within which the people must be ready for trial * * *, the following periods must be excluded: * * * the period of delay from a continuance granted by the court at the request of, with the consent of, the defendant or his counsel." "[C]onsent to adjournment must be clearly expressed by the defendant or defense to relieve the People of the responsibility for that portion the delay" (People v. Liotta, 79 N.Y.2d 841, 843; see People v. Smith, NY2d 676, 678). Here, the People failed to meet their burden of a record of such consent by defendant or defense counsel to the from June 27 to August 29, 2000 (see People v. Cortes, 80d 201, 215-216).
In determining that the period at issue was not to the People, the court stated that defendant had"indicated a possible interest in cooperating with the Metro Jeff Task" and had indicated that he "might be willing" to speak with of the task force.
"[A]s a general rule, the time incident to conclusion of plea negotiations is chargeable to the People"(People v. Coxon, 242 A.D.2d 962, 963 [internal quotation marks omitted]; People v. Correa, 77 N.Y.2d 930, 931) and, in the absence of a record the requisite consent to the adjournment by defendant or defense, we conclude that the 64-day period is chargeable to the. Thus, 201 days are chargeable to the People, which is well the statutory maximum, and the court erred in denying defendant's to dismiss the indictment. In light of our determination, we do not address defendant's remaining contentions.