Opinion
9093 Ind. 6138/11
04-25-2019
The PEOPLE of the State of New York, Appellant, v. Thein STEWART, Defendant–Respondent.
Cyrus R. Vance, Jr., District Attorney, New York (Stephen Kress of counsel), for appellant. Center for Appellate Litigation, New York (Robert S. Dean of counsel), and White & Case LLP, New York (Matthew L. Nicholson of counsel), for respondent.
Cyrus R. Vance, Jr., District Attorney, New York (Stephen Kress of counsel), for appellant.
Center for Appellate Litigation, New York (Robert S. Dean of counsel), and White & Case LLP, New York (Matthew L. Nicholson of counsel), for respondent.
Sweeny, J.P., Manzanet–Daniels, Tom, Kapnick, Moulton, JJ.
Order, Supreme Court, New York County (Gregory Carro, J.), entered on or about October 4, 2017, which granted defendant's CPL 440.10 motion to vacate a judgment of conviction rendered March 27, 2013, and dismissed the indictment, unanimously affirmed.
We previously held this appeal in abeyance pending a hearing on defendant's 440.10 motion ( 151 A.D.3d 478, 57 N.Y.S.3d 28 [1st Dept. 2017] ). After a hearing, Supreme Court granted the motion, finding that counsel rendered ineffective assistance by failing to make a proper speedy trial motion, and it dismissed the indictment.
Counsel filed a speedy trial motion, alleging well over the required threshold of 183 days of chargeable time. However, because of counsel's miscalculations, these allegations included substantial periods that were not in fact chargeable. As a result, the court deciding the speedy trial motion found that only 174 days were chargeable. However, if counsel had waited only 10 more days to file the motion, the circumstances of the case establish that this additional period would unquestionably have been charged to the People, as counsel was aware. Thus, the threshold would have been exceeded, and the court would have been required to grant the speedy trial motion. Instead, the filing of the premature motion stopped the clock and rendered the People's additional unreadiness excludable. The CPL 440.10 hearing record establishes that counsel had no strategic reason for filing the speedy trial motion in the form and at the time he did, and that his handling of the motion was objectively unreasonable. Furthermore, the prejudice prong of a single-error ineffectiveness claim was satisfied, because "[i]t is well settled that a failure of counsel to assert a meritorious speedy trial claim is, by itself, a sufficiently egregious error to render a defendant's representation ineffective" ( People v. St. Louis , 41 A.D.3d 897, 898, 838 N.Y.S.2d 215 [2007] ).
The remedy of dismissal, rather than ordering further proceedings, was appropriate in the circumstances presented in light of the finding that the indictment would have been dismissed on speedy trial grounds but for the ineffective assistance (see e. g. People v. Turner , 10 A.D.3d 458, 460, 781 N.Y.S.2d 163 [2d Dept. 2004], affd 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005] ).
We find the People's remaining arguments unavailing.