PEOPLE v. COULIBALY (2019)

Judgment, Supreme Court, New York County (Maxwell Wiley, J. on speedy trial motion; Daniel P. Conviser, J. at jury trial and sentencing), rendered August 9, 2016, convicting defendant of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously reversed, on the law, and the indictment dismissed.

Defendant was denied the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 713–14, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]) with regard to his speedy trial motion.  In his CPL 30.30(2) motion for defendant's release, defense counsel mistakenly calculated 99 days of includable time, instead of the correct calculation of 103 days.  The People conceded the 99 days, and the court released defendant.  When defense counsel thereafter moved to dismiss the indictment under CPL 30.30(1), defense counsel and the prosecutor repeated that error in calculating the delay as 99 days, with the court ultimately finding only 181 days of includable time and denying the motion.  Had counsel correctly calculated 103 days of chargeable time, the includable time would have totaled 185 days, rather than 181, and defendant's speedy trial claim would have been meritorious.  We have considered and rejected the People's arguments concerning the 63–day period following defendant's uncontested motion for release from custody, which the court found to be includable in its ultimate calculation on the dismissal motion.

Thus, counsel's error denied defendant the relief of dismissal to which he was entitled, and constituted ineffective assistance (see e.g. People v. Devino, 110 A.D.3d 1146, 1149, 973 N.Y.S.2d 372 [3d Dept. 2013]).  We exercise our discretion to dismiss the indictment, rather than ordering further speedy trial proceedings with new counsel, in light of our 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]).