THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v SCOTT BARDEN, Appellant.
Court of Appeals of the State of New York
June 14, 2016
55 NE3d 1053, 36 NYS3d 80, 27 NY3d 550
Argued January 5, 2016; reargued April 27, 2016
OPINION OF THE COURT
STEIN, J.
On this appeal, we are asked to determine who is chargeable, for statutory speedy trial purposes, with each discrete time period within a pre-readiness adjournment when the People initially request an adjournment to a specific date, defense counsel is unavailable on that date and requests a later date, but the court is unavailable on the later date, resulting in an even longer adjournment. Further, we must decide whether defendant consented to the additional delay occasioned by the court‘s calendar when, upon being advised by the court of its next available date, counsel responded, “[t]hat should be fine.” Applying our general rules, we conclude that defendant did not consent to the additional delay attributable to court congestion and, because the People failed to announce readiness within the statutory time period, defendant was entitled to dismissal of the indictment on speedy trial grounds.
Defendant was indicted on charges of identity theft in the first degree, criminal possession of stolen property in the fourth degree, and theft of services (two counts). At several court appearances, the People stated that they were not ready for trial
Where, as here, a felony is included in an indictment, the People must be ready for trial within six months, after subtracting excludable time (see
In this case, the statutory six month period equated to 184 days. Without explanation, Supreme Court charged the People with 179 days; those days are not at issue on this appeal. Rather, the question before us is whether, in calculating the
“[a]djournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel‘s failure to object to the adjournment or failure to appear does not constitute consent. The adjournments at issue here were, in the first instance, precipitated by the People‘s failure to be ready for trial. Other than stating that certain dates were inconvenient, defense counsel never formally consented to the adjournments and did not participate in setting the adjourned dates. Because the actual dates were set either by the court or the prosecution, no justification exists for excluding the additional adjournment time required to accommodate defense counsel‘s schedule” (id. at 678 [citation omitted and emphasis added]).
The question here distills to what constitutes participation sufficient to establish a request for, or consent to, an adjournment by defense counsel. As quoted above, Smith states that counsel‘s mere failure to object to an adjournment, or indication that a date requested by the People is inconvenient, is not a request or a clear expression of consent for purposes of calculating excludable time under
For example, on January 5, 2011, the People requested an adjournment until January 26, but defense counsel asked to have until after February 8, stating she had “a date in the Second Circuit on the 8th. I just need to get that done.” The
Likewise, on February 9, 2011, when the People requested an adjournment until February 23, defense counsel asked for a date the following week. At the same time, counsel stated that she needed an investigator for defendant‘s case and submitted documents seeking a court order to obtain one. The court set a date one week later than that requested by the People. On defendant‘s motion, the court charged the People with the days they requested (from February 10 through February 23), but charged defendant with the days thereafter. In that instance, defense counsel had indicated the need for time to hire an investigator and for that person to conduct an investigation. This request also constituted a clear expression of consent to a longer adjournment than that sought by the People, rendering that time (from February 24 through March 2) chargeable to defendant.
Finally, on March 2, 2011, the People sought an adjournment until March 16. Defense counsel stated that, on that date, she would be engaged in a civil trial which had begun two years earlier, and she expressed her strong desire to complete that trial. Counsel, therefore, asked to extend the adjournment until March 28. The court responded, “It has to be after April 8th. April 13th,” to which counsel replied, “[t]hat should be fine.” On the motion, the court properly charged the People with the days they requested (from March 3 through March 16), but apparently excluded all of the time between March 17 and April 13 from the speedy trial calculation. This was error. Defendant should have been charged only with the time that counsel requested to conduct her separate civil trial—that is, March 17 through March 28—and the People should have been charged with the remaining time, as the portion of the adjournment from March 29 through April 13 was required by the court, itself.
Additionally, as noted above, the People bear the burden of establishing which time periods should be excluded from the statutory six months, with no burden being placed on the defendant (see Santana, 80 NY2d at 105; Santos, 68 NY2d at 861). The general rule—that the People should be charged with pre-readiness delays caused by court congestion (see Chavis, 91 NY2d at 504; Stirrup, 91 NY2d at 440; Smith, 82 NY2d at 678; Kendzia, 64 NY2d at 337-338; Brothers, 50 NY2d at 417)—is premised on the idea that such delays do not inhibit the People from declaring readiness in writing, through an off-calendar statement (see Smith, 82 NY2d at 678). That reasoning applies equally well to any portion of a pre-readiness adjournment that is associated with court congestion, regardless of which party is chargeable with the remaining portion or portions of that adjournment. Here, the People could have filed an off-calendar statement of readiness at any time to stop the speedy trial clock, but they never did so. If the People were unsure of whether defense counsel‘s statement was an indication of consent to the entire period of the adjournment, they could have asked for clarification on the record; again, the People did not do so. Because the People did not meet their
Defendant also challenges the legal sufficiency of two counts of the indictment, asserting, among other things, that the term “credit card” in
Accordingly, the order of the Appellate Division should be reversed, defendant‘s
Chief Judge DIFIORE and Judges PIGOTT, RIVERA, ABDUS-SALAAM, FAHEY and GARCIA concur.
Order reversed, defendant‘s