People v Polanco (Manny)

[*1] People v Polanco (Manny) 2017 NY Slip Op 50188(U) Decided on February 14, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Gonzalez, JJ.
570402/11

The People of the State of New York, Respondent,

against

Manny Polanco, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Michael J. Yavinsky, J. at first speedy trial motion; Anthony J. Ferrara, J., at second speedy trial motion, hearings and trial), rendered April 15, 2011, convicting him, after a jury trial, of aggravated driving while intoxicated per se and driving while intoxicated, and imposing sentence.

Per Curiam.

Judgment of conviction (Michael J. Yavinsky, J. at first speedy trial motion; Anthony J. Ferrara, J. at second speedy trial motion, hearings and trial), rendered April 15, 2011, affirmed.

Defendant's speedy trial motions were properly denied. On this record, there is no proof that the People's readiness statements did not accurately reflect their position (see People v Brown, 28 NY3d 392 [2016]; People v Sibblies, 22 NY3d 1174 [2014]). The People's request for a three day adjournment on October 18, 2010 to obtain a calibration report does not establish that their prior statements of readiness were illusory. It is not the calibration report, but proof of the operability of the breathalyzer, that is necessary to lay a prima facie foundation for admission of the breathalyzer test results (see People v Zale, 137 AD3d 634, 635 [2016], lv denied 27 NY3d 1141 [2016]). "Therefore, the People's delay in obtaining and producing the calibration report . . . does not render their prior statements of readiness illusory" (id. at 635). The People could legitimately declare their readiness while gathering additional evidence to strengthen their case (see People v Wright, 50 AD3d 429, 430 [2008], lv denied 10 NY3d 966 [2008]; People v Rouse, 4 AD3d 553, 556 [2004], lv denied 2 NY3d 805 [2004]).

The adjournment period between the motion court's December 1, 2010 decision on defendant's first speedy trial motion and the next court date, January 24, 2011, was excludable as a delay attributable to defendant's motions and the demands of the court calendar (see People v Washington, 238 AD2d 263 [1997], lv denied 90 NY2d 944 [1997]; People v Shaw, 44 Misc 3d 79, 80 [2014], lv denied 24 NY3d 1046 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 14, 2017