PEOPLE v. PITTS (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the third degree (Penal Law § 160.05). Contrary to defendant's contention, County Court properly denied his motion to dismiss the indictment on speedy trial grounds (see generally CPL 30.30). Where, as here, a defendant is charged with a felony, the People must announce readiness for trial within six months of the commencement of the action (see CPL 30.30 [1] [a]; People v. Cooper, 90 N.Y.2d 292, 294, 660 N.Y.S.2d 546, 683 N.E.2d 11 [1997]). “The statutory period is calculated by ‘computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion’ ” (People v. Barnett, 158 A.D.3d 1279, 1280, 71 N.Y.S.3d 775 [4th Dept. 2018], lv denied 31 N.Y.3d 1078, 79 N.Y.S.3d 99, 103 N.E.3d 1246 [2018], quoting People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992]). Here, the People announced readiness for trial within 174 days of the commencement of the action. Thus, absent any period of postreadiness delay chargeable to the People, the People were ready for trial within the statutory period (see CPL 30.30 [1] [a]). Although defendant contends that the People should be charged with a period of postreadiness delay for failing to turn over the grand jury minutes within a reasonable amount of time, we reject that contention. “[W]here the People make no objection to the branch of [a defendant's] CPL 210.30 motion seeking inspection of the [g]rand [j]ury minutes, the People's obligation to produce the [g]rand [j]ury minutes within a reasonable time begins to run from the date the defendant's CPL 210.30 motion ․ is made” (People v. Harris, 82 N.Y.2d 409, 413, 604 N.Y.S.2d 918, 624 N.E.2d 1013 [1993]). If the People fail to produce the grand jury minutes in a reasonable time, the period of delay beyond what is reasonable is chargeable to the People (see id. at 413-414, 604 N.Y.S.2d 918, 624 N.E.2d 1013; People v. McKenna, 76 N.Y.2d 59, 66, 556 N.Y.S.2d 514, 555 N.E.2d 911 [1990]; People v. Lawrence, 222 A.D.2d 279, 279, 635 N.Y.S.2d 223 [1st Dept. 1995], lv denied 88 N.Y.2d 881, 645 N.Y.S.2d 455, 668 N.E.2d 426 [1996]; see also People v. Johnson, 42 A.D.3d 753, 754, 839 N.Y.S.2d 346 [3d Dept. 2007], lv denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 [2007]). Here, the People responded to defendant's omnibus motion, wherein defendant sought, inter alia, inspection of the grand jury minutes and dismissal of the indictment pursuant to CPL 210.30, within 21 days of the date that he filed and served that motion and, in their response papers, the People noted that they had requested a copy of the grand jury minutes and that they would provide the minutes to the court once the minutes were available. The record reflects that the court was in receipt of the grand jury minutes within 46 days of defendant's filing and service of the omnibus motion. Under these circumstances, we conclude that the People provided the grand jury minutes to the court in a reasonable amount of time (see People v. Barnes, 160 A.D.3d 890, 890, 75 N.Y.S.3d 229 [2d Dept. 2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 426, 108 N.E.3d 500 [2018]; People v. Van Deusen, 228 A.D.2d 987, 989, 645 N.Y.S.2d 125 [3d Dept. 1996]; see also People v. Harris, 187 A.D.2d 1015, 1015-1016, 590 N.Y.S.2d 367 [4th Dept. 1992], affd 82 N.Y.2d 409, 604 N.Y.S.2d 918, 624 N.E.2d 1013 [1993]), and thus that the court properly excluded that time period from the speedy trial calculation (see People v. Edmead, 197 A.D.3d 937, 939-940, 153 N.Y.S.3d 313 [4th Dept. 2021], lv denied 37 N.Y.3d 1096, 156 N.Y.S.3d 787, 178 N.E.3d 434 [2021], reconsideration denied 37 N.Y.3d 1160, 160 N.Y.S.3d 693, 181 N.E.3d 1121 [2022]; see also People v. Rouse, 47 A.D.3d 537, 538, 851 N.Y.S.2d 38 [1st Dept. 2008], revd on other grounds 12 N.Y.3d 728, 876 N.Y.S.2d 341, 904 N.E.2d 495 [2009]).

Defendant's contention regarding the People's alleged delay in filing a certificate of compliance in accordance with CPL 245.50 is unpreserved (see CPL 470.05 [2]; People v. Valentin, 183 A.D.3d 1271, 1272, 123 N.Y.S.3d 376 [4th Dept. 2020], lv denied 35 N.Y.3d 1049, 127 N.Y.S.3d 846, 151 N.E.3d 527 [2020]; People v. Dudley, 28 A.D.3d 1182, 1183, 816 N.Y.S.2d 253 [4th Dept. 2006], lv denied 7 N.Y.3d 788, 821 N.Y.S.2d 817, 854 N.E.2d 1281 [2006]). Further, even assuming, arguendo, that defendant correctly contends that a seven-day period was chargeable to the People due to their delay in filing the certificate of compliance, the inclusion of that time would not have exceeded the statutory period in this case (see CPL 30.30 [1] [a]). Thus, contrary to defendant's further contention, “defense counsel was not ineffective in failing to move to dismiss on that ground” (Valentin, 183 A.D.3d at 1272, 123 N.Y.S.3d 376; see People v. Brunner, 16 N.Y.3d 820, 821, 922 N.Y.S.2d 248, 947 N.E.2d 139 [2011]; People v. Robinson, 176 A.D.3d 533, 533, 108 N.Y.S.3d 837 [1st Dept. 2019], lv denied 34 N.Y.3d 1132, 118 N.Y.S.3d 527, 141 N.E.3d 483 [2020]).