PEOPLE v. MANNING (2008)

Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal contempt in the first degree (Penal Law § 215.51[b][v] ) and harassment in the second degree (§ 240.26[1] ).   We reject defendant's contention that the conviction is not supported by legally sufficient evidence and the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant further contends that he was denied effective assistance of counsel because defense counsel failed to move to dismiss the indictment based on the violation of his statutory right to a speedy trial (see CPL 30.30[1][a] ).   The record reflects that the felony complaint was filed on March 3, 2004 and that the People did not announce their readiness for trial until September 20, 2004, when defendant was arraigned on the indictment.   Defense counsel did not seek dismissal of the indictment pursuant to CPL 210.20(1)(g) on the ground that defendant was denied the right to a speedy trial.

 “It is well settled that a failure of counsel to assert a meritorious statutory 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;  see People v. Johnson, 288 A.D.2d 501, 732 N.Y.S.2d 137;  People v. White, 229 A.D.2d 610, 610-611, 645 N.Y.S.2d 562;  People v. Pickens, 216 A.D.2d 631, 632, 627 N.Y.S.2d 825).   Here, it is undisputed that more than six months elapsed between the commencement of the criminal action and the date on which the People announced their readiness for trial.   Because defendant has made a prima facie showing on appeal that the People failed to comply with CPL 30.30(1)(a), the burden now shifts to the People to demonstrate “sufficient excludable time” (People v. Kendzia, 64 N.Y.2d 331, 338, 486 N.Y.S.2d 888, 476 N.E.2d 287).   The People contend that an April 26, 2004 appearance by defendant in County Court demonstrates that there had been ongoing plea negotiations and that they cannot be charged with the period of time during which those plea negotiations occurred.   Although the People are correct that “[a] period of delay resulting from ongoing plea negotiations is excludable for the purpose of determining whether defendant has been deprived of the right to a speedy trial,” that period is excludable only in the event that defendant or defense counsel requested the delay or consented thereto in order to engage in those plea negotiations (People v. Jenkins, 302 A.D.2d 978, 978, 754 N.Y.S.2d 796, lv. denied 100 N.Y.2d 562, 763 N.Y.S.2d 819, 795 N.E.2d 45;  see People v. Waldron, 6 N.Y.3d 463, 467, 814 N.Y.S.2d 70, 847 N.E.2d 367).   We are unable to determine on the record before us whether any such period of time was excludable because, as noted, defense counsel did not raise the speedy trial issue in County Court and the People therefore did not present evidence addressing that issue.   We therefore hold the case, reserve decision and remit the matter to County Court for assignment of new counsel and for a hearing to determine whether any period of time between the commencement of the criminal action and the People's announcement of readiness for trial is excludable (see St. Louis, 41 A.D.3d at 898-899, 838 N.Y.S.2d 215;  Johnson, 288 A.D.2d at 502, 732 N.Y.S.2d 137;  Pickens, 216 A.D.2d at 632, 627 N.Y.S.2d 825).

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Onondaga County Court for further proceedings.

I respectfully dissent and would affirm.   While I agree with the majority that the conviction is supported by legally sufficient evidence and that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), I disagree with the majority's resolution of defendant's contention concerning ineffective assistance of counsel.   To establish ineffective assistance of counsel based on the failure to make a particular motion, “it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's failure to [make such a motion]” (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698;  see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Marcial, 41 A.D.3d 1308, 837 N.Y.S.2d 815, lv. denied 9 N.Y.3d 878, 842 N.Y.S.2d 790, 874 N.E.2d 757).  “Stated differently, defendant must show that the particular motion, if made, would have been successful and that defense counsel's failure to make that motion deprived him of meaningful representation” (Marcial, 41 A.D.3d at 1308, 837 N.Y.S.2d 815).   Upon reviewing the record on appeal, I cannot agree with the majority that defendant met his burden of establishing the absence of any legitimate explanation for defense counsel's failure to move to dismiss the indictment based on the alleged violation of his statutory right to a speedy trial, thus shifting the burden of proof to the People to demonstrate that such a motion would not have been successful.   Rather, as we previously have held, because the record is inadequate to enable this Court to determine whether such a motion would have been successful and whether defendant was deprived of meaningful representation based on defense counsel's failure to make that motion, the proper procedural vehicle to develop the record is a motion pursuant to CPL 440.10 (see People v. Wooten, 283 A.D.2d 931, 725 N.Y.S.2d 767, lv. denied 96 N.Y.2d 943, 733 N.Y.S.2d 383, 759 N.E.2d 382;  People v. Miller, 142 A.D.2d 970, 530 N.Y.S.2d 1018;  see also People v. Oliver, 24 A.D.3d 1305, 805 N.Y.S.2d 874, lv. denied 6 N.Y.3d 836, 814 N.Y.S.2d 85, 847 N.E.2d 382).

MEMORANDUM: