People v Doe (John)

[*1] People v Doe (John) 2015 NY Slip Op 50135(U) Decided on February 20, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 20, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
570745/14

The People of the State of New York, Appellant,

against

John Doe a/k/a Jerry Smith, Defendant-Respondent.

The People appeal from an order of the Criminal Court of the City of New York, Bronx County (Dakota D. Ramseur, J.), dated April 7, 2014, which granted defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30.

Per Curiam.

Order (Dakota D. Ramseur, J.), entered on or about April 7, 2014, reversed, on the law, motion denied, information reinstated and matter remitted to Criminal Court for further proceedings.

Criminal Court erred in dismissing the accusatory instrument on speedy trial grounds. The People's July 27, 2012 statement of readiness to proceed to trial on the charges of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and resisting arrest (Penal Law § 205.30) effectively stopped the "speedy trial" clock, inasmuch as the counts of the accusatory instrument pertaining to those charges were "deemed" converted to an information on that date (CPL 170.65[1]), and no basis is shown to conclude that the People were not then actually ready to proceed on the converted charges (see People v Kendzia, 64 NY2d 331, 337 [1985]; People v Carter, 91 NY2d 795, 798 [1988]). That the accusatory instrument may have contained counts which had not been timely converted did not signify a lack of readiness to proceed on the properly converted counts, concerning which the People were "technically positioned" to go to trial (People v Terry, 225 AD2d 306, 307 [1996], lv denied 88 NY 886 [1996]; see also People v Dion, 93 NY2d 893 [1999]). It need be emphasized that speedy trial analysis "must, as a matter of course, often involve distinct considerations with respect to individual counts of a single accusatory instrument" (People v Gonzalez, 168 Misc 2d 136, 137 [1996], lv denied 88 NY2d 936 [1996]; People v Ausby, 46 Misc 3d 126[A], 2014 NY Slip Op 51763 [App Term, 1st Dept 2014]; each quoting from People v Minor, 149 Misc 2d 846, 848 [1989], lv denied 74 NY2d 666 [1989]). Giving proper effect to the People's July 27, 2012 readiness statement, it is indisputable that the People complied with their speedy trial obligations with respect to the properly converted counts.

From a procedural perspective, reversal is required because the procedure followed below — by [*2]which the court, over the People's objection, entertained and summarily granted defendant's oral motion to dismiss on speedy trial grounds, while "sealing" the case for a specified time period to allow the People to "brief [the] 30.30 issues" already decided against them — ran afoul of the notice provisions of sections 170.45 and 210.45 of the Criminal Procedure Law (see People v Littles, 188 AD2d 255, 256 [2002], lv denied 81 NY2d 842 [1993]). People v Alston, 191 AD2d 176 (1993), now cited by defendant as authority for the court's sua sponte dismissal order, is distinguishable on several grounds, most notably that the prosecution in that case, unlike here, was "clearly on notice [some two weeks prior to the issuance of the court's speedy trial dismissal order] that the court was contemplating

dismissal of the indictment on speedy trial grounds" (Alston at 177). Upon our review of this record in this procedural posture, the peremptory nature of the dismissal order here under review "was clearly error and warrants reversal in and of itself" (People v Dunlap, 216 AD2d 215,
217 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concurI concur
Decision Date: February 20, 2015