PEOPLE v. JOHNSON (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, that part of the motion seeking to dismiss the superseding indictment pursuant to CPL 30.30 is granted, the superseding indictment is dismissed, and the matter is remitted to Supreme Court, Onondaga County, for proceedings pursuant to CPL 470.45.

Memorandum:  On appeal from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance (CPCS) in the fifth degree (Penal Law § 220.06[5]), defendant contends that Supreme Court erred in denying that part of his motion seeking to dismiss the superseding indictment on statutory speedy trial grounds (see generally CPL 30.30).  We agree.

The People should have been charged with 87 days of postreadiness delay between May 23, 2016, when they “implicitly requested” an adjournment to seek a superseding indictment (Matter of Johnson v. Andrews, 179 A.D.2d 417, 418, 579 N.Y.S.2d 332 [1st Dept. 1992]), and August 18, 2016, when they finally secured a superseding indictment.  As both the court and the People acknowledged at various points, that period of delay was “attributable to [the People's] inaction and directly implicate[d] their ability to proceed to trial” on a charge of CPCS in the fifth degree, i.e., the crime that the People sought to add by way of a superseding indictment and the sole crime for which defendant was ultimately convicted (People v. Carter, 91 N.Y.2d 795, 799, 676 N.Y.S.2d 523, 699 N.E.2d 35 [1998];  see generally CPL 210.05;  People v. McKenna, 76 N.Y.2d 59, 65 n., 556 N.Y.S.2d 514, 555 N.E.2d 911 [1990]).  Contrary to the court's determination, the 87–day period was not attributable to the court given that it was “the People's inaction [in securing a superseding indictment that] resulted in a delay in the court's [trial of the action]” (People v. Harris, 82 N.Y.2d 409, 412, 604 N.Y.S.2d 918, 624 N.E.2d 1013 [1993]).  Contrary to the People's contention, it is well established that postreadiness delay may be assessed “notwithstanding that the People have answered ready for trial within the statutory time limit” (People v. Anderson, 66 N.Y.2d 529, 536, 498 N.Y.S.2d 119, 488 N.E.2d 1231 [1985]) and notwithstanding the absence of an explicit prosecutorial request for an adjournment (see e.g. McKenna, 76 N.Y.2d at 64–65, 556 N.Y.S.2d 514, 555 N.E.2d 911;  People v. Jones, 105 A.D.2d 179, 186, 483 N.Y.S.2d 345 [2d Dept. 1984], affd sub nom People v. Anderson, 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231 [1985]).  Although certain periods of time may be excluded from assessment as postreadiness delay where the People successfully invoke one of the exceptions enumerated in CPL 30.30(4) (see People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992];  see also CPL 30.30[3][b]), the People have identified no exception that might excuse the 87–day delay at issue here (see People v. Miller, 113 A.D.3d 885, 888 n., 978 N.Y.S.2d 412 [3d Dept. 2014]).

When the 87 days of postreadiness delay are added to the 168 days of prereadiness delay for which the People admit they are chargeable, the resulting 255 days of chargeable time exceeds the 183 days authorized under these circumstances (see generally CPL 30.30[1][a];  People v. Brown, 28 N.Y.3d 392, 403–404, 68 N.E.3d 45 [2016];  People v. Sinistaj, 67 N.Y.2d 236, 241, 501 N.Y.S.2d 793, 492 N.E.2d 1209 [1986];  People v. Osgood, 52 N.Y.2d 37, 43, 436 N.Y.S.2d 213, 417 N.E.2d 507 [1980]).  The court thus erred in denying the motion to dismiss the superseding indictment on statutory speedy trial grounds.  We therefore reverse the judgment, grant that part of defendant's motion seeking to dismiss the superseding indictment pursuant to CPL 30.30, and dismiss the superseding indictment (see People v. Harrison, 171 A.D.3d 1481, 1484, 99 N.Y.S.3d 158 [4th Dept. 2019];  Miller, 113 A.D.3d at 887–888, 978 N.Y.S.2d 412).  Defendant's remaining contentions are academic.