PEOPLE v. MIDDLETON (2024)

Judgment, Supreme Court, New York County (Miriam R. Best, J., at speedy trial motion;  Brendan T. Lantry, J., at plea and sentencing), rendered April 20, 2023, convicting defendant of attempted assault in the second degree, and sentencing her, as a second felony offender, to a term of 11/212 to 3 years, unanimously reversed, on the law, defendant's speedy trial motion granted, and the indictment dismissed.

The court should have granted defendant's speedy trial motion (CPL 30.30).  The 284–day period from October 19, 2020, when the Executive Order lifted the toll and reinstated speedy trial time for indicted felonies, and July 30, 2021, when the People first filed a Certificate of Readiness, was includable because the record did not establish that defendant expressly waived her speedy trial rights while pursuing plea negotiations (see People v. Waldron, 6 N.Y.3d 463, 467, 814 N.Y.S.2d 70, 847 N.E.2d 367 [2006];  People v. Lewins, 151 A.D.3d 575, 577–578, 58 N.Y.S.3d 313 [1st Dept. 2017], lv denied 30 N.Y.3d 981, 67 N.Y.S.3d 583, 89 N.E.3d 1263 [2017]).  On February 7, 2020, when the People rejected defendant's request for a plea involving programming, counsel specifically requested an adjournment only to March 23, 2020, to attempt further discussions with the assigned prosecutor (see People v. Barden, 27 N.Y.3d 550, 555, 36 N.Y.S.3d 80, 55 N.E.3d 1053 [2016]).  The record does not reflect that the People required any waiver of speedy trial rights as a condition of further plea negotiations, nor does it contain any evidence of written communications from counsel purporting to waive defendant's speedy trial rights during the period at issue, and “[m]ere silence is not a waiver” (People v. Dickinson, 18 N.Y.3d 835, 836, 938 N.Y.S.2d 836, 962 N.E.2d 257 [2011]).