People v Pierce (Leroy)

[*1] People v Pierce (Leroy) 2004 NY Slip Op 51205(U) Decided on June 18, 2004 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS -x PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
2003-594 W CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

LEROY PIERCE, Appellant.

Appeal by defendant from a judgment of the City Court, City of White Plains, Westchester County (B. Leak, J., at trial; J. Friia, J., at sentence), rendered April 7, 2003, convicting him of violating section 168-t of the Correction Law and imposing sentence.

Judgment of conviction unanimously affirmed.

Defendant was charged with violating section 168-t of the Correction Law, a class A misdemeanor. Thus, defendant was entitled to have his case dismissed if the
People were not ready for trial within 90 days of commencement of this action (CPL 30.30 [1] [b]). The People commenced the action on August 24, 2001, the date of filing of the accusatory instrument (CPL 1.20 [16], [17]) and announced their readiness at the time of arraignment, September 24, 2001. Thus, the People were initially charged for the time between the date of filing of the accusatory instrument and their announcement of readiness (People v Stiles, 70 NY2d 765, 767 [1987]; General Construction Law § 20). At the time of arraignment, defendant was incarcerated within the state on other matters. Inasmuch as defendant, at the time of arraignment, either consented to or requested an adjournment through December 12, 2001, said post-readiness time is not chargeable to the People (CPL 30.30 [4] [b]).

On December 12, 2001 defendant was not produced. The matter was adjourned to February 20, 2002, at which time defendant was again not produced. The court adjourned the matter to March 17, 2002, a date requested by defendant's counsel, so as to allow him to confer with the "Sex Offender's Unit." There are no notations in the record to indicate what, if anything, occurred on March 17, 2002. However, defendant
was not produced on the next date, April 17, 2002, at which time the matter was
adjourned to May 15, 2002. Defendant was again not produced and defense counsel
requested an "all purpose adjournment" to June 7, 2002, at which time defendant was produced.

The People have the duty and obligation to produce defendants incarcerated within the State (see People v Maselli, 13 NY2d 1 [1963]; People v Wojciechowski, 143 AD2d 164 [*2][1988]). The failure of the People to produce a defendant for trial clearly affects the People's continued readiness, since defendant's presence is a prerequisite for proceeding to trial (see People v Jones, 105 AD2d 179 [1984], affd 66 NY2d 529 [1985]; see also US Const, 6th Amend; NY Const, art I § 6; CPL 260.20).

In the case at bar, we need not determine whether the People exercised due diligence in producing defendant on said dates, i.e., that the proper statutory procedures were followed (CPL 30.30 [4] [e]; 560.10; People v Anderson, 66 NY2d, 529, 540 [1985]) inasmuch as defense counsel either consented to the subject adjournments or in some instances requested them. Thus, in any event, said time is not chargeable to the People (see CPL 30.30 (4) (b); People v Worley, 66 NY2d 523, 527 [1985]; People v Allen, 152 Misc 2d 257, 259 [1991], affd 203 AD2d 97 [1994], lv denied 83 NY2d 963 [1994]). Accordingly, defendant's motion to dismiss for lack of a speedy trial was properly denied.

The issues raised regarding defendant's allegation that he did not receive a fair trial were not properly preserved for appeal and even if they were, lack merit. Defendant's arguments are based on the fact that at trial his attorney stipulated to the facts as set forth by the People in their opposing statement and the court accepted same without making an inquiry of defendant. Inasmuch as defendant did not move for relief prior to the court's imposition of sentence, said issue was not preserved for appeal (see CPL 470.05 [2]; People v Williams,161 AD2d 295 [1990]; People v Mills, 103 AD2d 379, 388 [1984]). In addition, even if said issues had been preserved, the Appellate Division, Second Department, in People v Mills (103 AD2d 379, supra) held that it was not error to conduct a non-jury trial on a stipulated set of incriminating facts without having first inquired of defendant whether he had knowingly and intelligently agreed to the stipulation.
Decision Date: June 18, 2004