PEOPLE v. SHULER (2024)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered August 19, 2020, convicting defendant upon his plea of guilty of the crime of attempted robbery in the second degree, and (2) by permission, from an order of said court (Michael W. Smrtic, J.), entered August 15, 2023, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was arrested in November 2018 and charged by felony complaint with various property crimes.  On May 10, 2019, the People filed an indictment charging defendant with robbery in the second degree, robbery in the third degree, two counts of grand larceny in the fourth degree and petit larceny.  Defendant, who had been placed in the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS) due to an unrelated parole violation, was not produced for the first scheduled arraignment date.  He was thereafter arraigned on June 3, 2019.  Following unsuccessful motion practice, defendant pleaded guilty to attempted robbery in the second degree and waived his right to appeal.  County Court (Sypniewski, J.) sentenced defendant, as a second felony offender, to a prison term of four years, to be followed by five years of postrelease supervision.  Thereafter, defendant moved pursuant to CPL article 440 to vacate his conviction, arguing that defense counsel was ineffective for failing to move to dismiss the indictment on speedy trial grounds.  The People opposed, and County Court (Smrtic, J.) denied the motion without a hearing.  Defendant appeals from the judgment of conviction and, by permission, the denial of his CPL article 440 motion.

Initially, as defendant failed to present any arguments relating to his direct appeal from the judgment of conviction, that appeal is deemed abandoned (see People v. Harris, 143 A.D.3d 1181, 1182–1183, 40 N.Y.S.3d 239 [3d Dept. 2016], lv denied 28 N.Y.3d 1145, 52 N.Y.S.3d 297, 74 N.E.3d 682 [2017]).  Defendant's sole argument on appeal is that County Court erred in denying his CPL article 440 motion, because defense counsel's failure to seek dismissal of the action on speedy trial grounds denied him meaningful representation.  “To establish a claim of ineffective assistance of counsel, a defendant is required to demonstrate that he or she was not provided meaningful representation and that there is an absence of strategic or other legitimate explanations for counsel's allegedly deficient conduct” (People v. Reichel, 211 A.D.3d 1090, 1091, 178 N.Y.S.3d 637 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 1113, 186 N.Y.S.3d 848, 208 N.E.3d 77 [2023];  see People v. Bateman, 212 A.D.3d 993, 997, 181 N.Y.S.3d 748 [3d Dept. 2023], lv denied 39 N.Y.3d 1140, 188 N.Y.S.3d 451, 209 N.E.3d 1277 [2023]).  Notably, “the N.Y. Constitution guarantees a defendant a fair trial, not a perfect one” (People v. Lafountain, 200 A.D.3d 1211, 1216, 157 N.Y.S.3d 628 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted], lv denied 38 N.Y.3d 951, 165 N.Y.S.3d 476, 185 N.E.3d 997 [2022];  see People v. Miley, 229 A.D.3d 969, 974, 215 N.Y.S.3d 588 [3d Dept. 2024]).  For this reason, ineffectiveness claims generally require that the evidence, the law and the circumstances be examined in their totality to determine whether a defendant in a criminal action received meaningful representation (see People v. Malloy, 228 A.D.3d 1068, 1071, 212 N.Y.S.3d 756 [3d Dept. 2024];  People v. Colter, 206 A.D.3d 1371, 1376, 170 N.Y.S.3d 665 [3d Dept. 2022], lv denied 38 N.Y.3d 1149, 174 N.Y.S.3d 44, 194 N.E.3d 751 [2022]).  However, in the rare circumstance where “a single lapse by otherwise competent counsel” is deemed egregious and prejudicial, it “compels the conclusion that a defendant was deprived of his [or her] constitutional right to effective legal representation” (People v. Henderson, 28 N.Y.3d 63, 65, 41 N.Y.S.3d 464, 64 N.E.3d 284 [2016] [internal quotation marks and citation omitted];  see People v. McCauley, 162 A.D.3d 1307, 1310, 79 N.Y.S.3d 743 [3d Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018]).

Where, as here, a defendant is charged with at least one felony offense, the People must be ready for trial within six months of the commencement of the criminal action, 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. Chrysler, 152 A.D.3d 825, 826, 59 N.Y.S.3d 491 [3d Dept. 2017] [internal quotation marks and citation omitted], lv denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017];  see CPL 30.30[1][a];  People v. O'Day, 200 A.D.3d 1495, 1496, 159 N.Y.S.3d 230 [3d Dept. 2021]).¹  Here, a felony complaint was filed against defendant on November 16, 2018 and, thus, the People had until May 17, 2019 to declare their readiness for trial (see CPL 30.30[1][a]).  The People filed the indictment against defendant along with a written declaration of readiness on May 10, 2019.  At the scheduled May 13, 2019 arraignment, the People again declared their readiness for trial, but defendant was not produced, as he had been taken into DOCCS custody in March 2019 due to an unrelated parole violation.  The arraignment was adjourned to May 28, 2019 but did not take place on that date.  Rather, upon the People's May 29, 2019 application, County Court signed an order to produce defendant for arraignment on June 3, 2019, and defendant was ultimately arraigned on that date.

Before we can engage in a speedy trial analysis, we must address the parties’ dispute as to the effect of CPL 560.10 upon these proceedings.  Defendant contends that the People's failure to exercise reasonable diligence to have defendant produced for arraignment pursuant to CPL 560.10(1)(a) makes the delay chargeable to them.  The People counter that, as “[a]rraigning a defendant upon indictment is exclusively a court function,” any delay in getting defendant arraigned is not chargeable to the People (People v. Goss, 87 N.Y.2d 792, 797, 642 N.Y.S.2d 607, 665 N.E.2d 177 [1996];  see People v. Taylor, 57 A.D.3d 1518, 1518–1519, 869 N.Y.S.2d 710 [4th Dept. 2008], lv denied 12 N.Y.3d 822, 881 N.Y.S.2d 29, 908 N.E.2d 937 [2009]).  Based upon the plain language of CPL 210.10, the Court of Appeals found that said statute imposed upon the trial court a nondelegable duty to produce a defendant for arraignment, to provide defendant with two days’ notice of said arraignment and to conduct the arraignment (see People v. Goss, 87 N.Y.2d at 797, 642 N.Y.S.2d 607, 665 N.E.2d 177).  However, CPL 210.10 is clear that it applies where a defendant is being held in the custody of the local sheriff for the same criminal action (see CPL 210.10[1];  People v. Goss, 87 N.Y.2d at 797, 642 N.Y.S.2d 607, 665 N.E.2d 177;  see also People v. Carter, 91 N.Y.2d 795, 799, 676 N.Y.S.2d 523, 699 N.E.2d 35 [1998]).  Where, as here, a defendant is instead “confined in an institution within the state pursuant to a court order issued in a different action,” County Court “may, upon application of the district attorney, order the production therein of [said] defendant” (CPL 560.10[1][a] [emphasis added];  compare CPL 210.10[1]).  Unlike CPL 210.10, which directs that County Court “must” order the production of a defendant who is in the custody of a local sheriff in connection with the same criminal action, we have previously held that CPL 560.10(1)(a) requires the People to apply for production of a defendant who is detained by DOCCS in connection with a separate criminal action (see People v. Greenwaldt, 103 A.D.2d 933, 933–934, 479 N.Y.S.2d 781 [3d Dept. 1984];  see also People v. Daniels, 217 A.D.2d 448, 452–453, 630 N.Y.S.2d 5 [1st Dept. 1995], appeal dismissed 88 N.Y.2d 917, 646 N.Y.S.2d 982, 670 N.E.2d 223 [1996];  People v. Orse, 118 A.D.2d 816, 818, 500 N.Y.S.2d 173 [2d Dept. 1986]).²

Turning to the speedy trial analysis, we agree with the People that their May 10, 2019 declaration of readiness was not rendered illusory by the mere fact that defendant's arraignment did not occur within the statutory speedy trial period (see People v. Goss, 87 N.Y.2d at 796–797, 642 N.Y.S.2d 607, 665 N.E.2d 177;  People v. Turner, 172 A.D.3d 1768, 1770, 101 N.Y.S.3d 756 [3d Dept. 2019], lv denied 34 N.Y.3d 939, 109 N.Y.S.3d 732, 133 N.E.3d 436 [2019];  compare People v. England, 84 N.Y.2d 1, 3–5, 613 N.Y.S.2d 854, 636 N.E.2d 1387 [1994]).  At the time of the May 10 declaration, seven days remained on the speedy trial clock.  As the People note, delays caused by circumstances outside of the People's control, such as court congestion, are excluded from the speedy trial calculation (see e.g. CPL 30.30[4];  People v. Anderson, 66 N.Y.2d 529, 535, 498 N.Y.S.2d 119, 488 N.E.2d 1231 [1985];  People v. Giordano, 56 N.Y.2d 524, 525, 449 N.Y.S.2d 955, 434 N.E.2d 1333 [1982]).  However, “[p]ostreadiness delay is chargeable to the People when it is attributable to their inaction and directly implicates their ability to proceed to trial” (People v. Chrysler, 152 A.D.3d at 826, 59 N.Y.S.3d 491 [internal quotation marks and citation omitted]).  As relevant here, any period of delay occasioned by a defendant's detention in another jurisdiction is excluded, “provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial” (CPL 30.30[4][e]).

At the latest, the People became aware that defendant was in the custody of DOCCS at the May 13, 2019 appearance, and they requested to have the arraignment adjourned to “May 28th, as soon as we can get [defendant] from downstate.”  Yet, the record reflects that the People engaged in no efforts to have defendant produced until May 29, when they filed their application pursuant to CPL 560.10, and we reject their generic assertion that this constituted diligent and reasonable efforts (compare People v. Pellis, 159 A.D.3d 1347, 1348, 73 N.Y.S.3d 688 [4th Dept. 2018], lv denied 31 N.Y.3d 1151, 83 N.Y.S.3d 433, 108 N.E.3d 507 [2018];  People v. Durham, 148 A.D.3d 1293, 1294, 49 N.Y.S.3d 567 [3d Dept. 2017], lv denied 29 N.Y.3d 1091, 63 N.Y.S.3d 7, 85 N.E.3d 102 [2017];  People v. Williams, 229 A.D.2d 603, 603, 646 N.Y.S.2d 142 [2d Dept. 1996], lv denied 89 N.Y.2d 931, 654 N.Y.S.2d 734, 677 N.E.2d 306 [1996]).³  The People could not proceed to trial without having first arraigned defendant and because the delay was caused by the People's own inaction, the 16 days from May 13 through May 29 are chargeable to the People, thus exceeding the seven days remaining on the speedy trial clock.  As such, we conclude that the People were not ready for trial within the applicable six-month statutory period (see People v. Babbs, 232 A.D.2d 496, 497, 648 N.Y.S.2d 649 [2d Dept. 1996]; People v. Wojciechowski, 143 A.D.2d 164, 165–166, 531 N.Y.S.2d 613 [2d Dept. 1988], lv denied 73 N.Y.2d 861, 537 N.Y.S.2d 507, 534 N.E.2d 346 [1988];  People v. Greenwaldt, 103 A.D.2d at 933–934, 479 N.Y.S.2d 781;  compare People v. Lloyd, 141 A.D.2d 669, 670, 529 N.Y.S.2d 801 [2d Dept. 1988], lv denied 73 N.Y.2d 787, 536 N.Y.S.2d 747, 533 N.E.2d 677 [1988];  contra People v. Taylor, 57 A.D.3d at 1518–1519, 869 N.Y.S.2d 710).

Having concluded that defense counsel failed to make a meritorious speedy trial motion, we must determine whether this failure, alone, was so egregious and prejudicial as to amount to ineffective assistance (see People v. Henderson, 28 N.Y.3d at 65, 41 N.Y.S.3d 464, 64 N.E.3d 284).  We reject the People's contention that this speedy trial motion involved the resolution of various novel and complex issues (see People v. Brunner, 16 N.Y.3d 820, 821, 922 N.Y.S.2d 248, 947 N.E.2d 139 [2011]), as it has long been settled in this Department that CPL 560.10(1)(a) imposes upon the People a “responsibility to petition the trial court for an order producing defendant for ‘arraignment or prosecution’ ” (People v. Greenwaldt, 103 A.D.2d at 933, 479 N.Y.S.2d 781, quoting CPL 560.10) – a principle which is not diminished by the Fourth Department's contradictory holding in (People v. Taylor, 57 A.D.3d at 1518–1519, 869 N.Y.S.2d 710;  cf.  Matter of Centurylink Communications, LLC v. Schmidt, 199 A.D.3d 1084, 1088, 158 N.Y.S.3d 266 [3d Dept. 2021]).  As such, and noting that the timeline underlying the speedy trial analysis is uncontroverted,⁴ we find that defendant was denied meaningful representation due to defense counsel's failure to pursue a meritorious speedy trial motion and, thus, his motion to vacate should have been granted (see People v. Devino, 110 A.D.3d 1146, 1149, 973 N.Y.S.2d 372 [3d Dept. 2013]).  Lastly, as the time to prosecute defendant under this indictment has expired, the indictment must be dismissed.

ORDERED that the judgment and the order are reversed, on the law, motion to vacate granted and indictment dismissed.

FOOTNOTES

1.   The provisions of CPL article 245 are not applicable to this case, which was indicted before January 1, 2020, the effective date of that legislation (see L 2019, ch 59, part LLL, § 2;  see also CPL 30.30[5];  People v. King, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2024 N.Y. Slip Op. 03322, *1–2 [2024];  cf.  People v. Duggins, 192 A.D.3d 191, 193–195, 140 N.Y.S.3d 317 [3d Dept. 2021], lv denied 36 N.Y.3d 1096, 144 N.Y.S.3d 152, 167 N.E.3d 1287 [2021]).

2.   Neither People v. Goss nor People v. Carter addresses CPL 560.10, so we reject the People's contention that those cases should be read to overrule People v. Greenwaldt.

3.   The People did not assert that any other period should be excluded from the speedy trial calculation.

4.   Notably, during oral argument on this appeal, counsel for both parties reaffirmed that there were no disputes as to the facts or the timeline and, as such, that no hearing was necessary.

Clark, J.P.

Pritzker, Ceresia, Fisher and Mackey, JJ., concur.