PEOPLE v. ST LOUIS (2007)

Appeal from a judgment of the County Court of Essex County (Halloran, J.), rendered November 22, 2005, upon a verdict convicting defendant of the crimes of attempted assault in the second degree and menacing in the third degree and the violation of harassment in the second degree.

On September 21, 2004, defendant was charged, by criminal court information, with menacing in the third degree and harassment in the second degree arising out of a domestic dispute.   By motion dated December 28, 2004, the People sought an adjournment of the local criminal court matter so that these charges could be presented to a grand jury.   Thereafter, a three-count indictment was handed down on March 22, 2005, containing the original charges of menacing in the third degree and harassment in the second degree, and further charging defendant with the felony of attempted assault in the second degree.   The People declared their readiness for trial on that day and on April 26, 2005 when defendant was arraigned.

Following a jury trial, defendant was convicted of all three counts and was thereafter sentenced to, among other things, 90 days of incarceration to be followed by five years of probation.   He now appeals contending, among other things, that his trial counsel's failure to move to dismiss the charges against him on speedy trial grounds rendered his representation ineffective.

 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 (see People v. White, 229 A.D.2d 610, 610-611, 645 N.Y.S.2d 562 [1996];  People v. Jackson, 172 A.D.2d 874, 875, 568 N.Y.S.2d 177 [1991], lv. denied 78 N.Y.2d 923, 573 N.Y.S.2d 475, 577 N.E.2d 1067 [1991] ).   Computation under CPL 30.30 is determined by the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness for trial, less any excusable delays (see People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992];  People v. Chevalier, 226 A.D.2d 925, 928, 641 N.Y.S.2d 433 [1996], lv. denied 88 N.Y.2d 934, 647 N.Y.S.2d 168, 670 N.E.2d 452 [1996] ).   Here, the initial criminal court information, which charged defendant with a class B misdemeanor and a violation, required that the People be ready for trial within 60 days of its issuance (see CPL 30.30[1] [c] ).  With respect to the felony count, the speedy trial clock began at the same time as the prior two charges-September 21, 2004 (see People v. Lomax, 50 N.Y.2d 351, 355-356, 428 N.Y.S.2d 937, 406 N.E.2d 793 [1980];  People v. Brown, 23 A.D.3d 703, 705, 803 N.Y.S.2d 304 [2005], lv. denied 6 N.Y.3d 810, 812 N.Y.S.2d 449, 845 N.E.2d 1280 [2006] ) requiring that the People be ready for trial on March 21, 2005 in accordance with the six-month time frame set forth in CPL 30.30(1)(a).   As defendant made a prima facie showing that the People failed to comply with CPL 30.30 with respect to both time frames concerning all three charges, the burden shifted to the People to demonstrate sufficient excludable time (see People v. Grey, 257 A.D.2d 685, 687, 683 N.Y.S.2d 627 [1999] ).

 The People assert, and we agree, that the record before us is insufficient to determine if there was any excludable time.   While the People also contend that such issue must be addressed by a CPL article 440 motion, we disagree.   The issue may well be raised by this means if defendant had entered a plea (see People v. Obert, 1 A.D.3d 631, 632, 766 N.Y.S.2d 264 [2003], lv. denied 2 N.Y.3d 764, 778 N.Y.S.2d 782, 811 N.E.2d 44 [2004] ), but where, as here, there is an appeal from a verdict which raises a number of issues that must be determined upon direct appeal, the more appropriate resolution is to remit the matter to County Court for an assignment of new counsel so that defendant's speedy trial claim can be further explored (see People v. Grey, supra at 687, 683 N.Y.S.2d 627;  People v. Pickens, 216 A.D.2d 631, 632, 627 N.Y.S.2d 825 [1995];  People v. Thomas, 200 A.D.2d 866, 867, 606 N.Y.S.2d 848 [1994] ).   Thus, this appeal must be held in abeyance while the matter is remitted to County Court for both an assignment of new counsel and a hearing to determine defendant's speedy trial claim.

ORDERED that the decision is withheld, and matter remitted to the County Court of Essex County for further proceedings not inconsistent with this Court's decision.

PETERS, J.

CARDONA, P.J., MERCURE, ROSE and LAHTINEN, JJ., concur.