People v. Liotta

—Order, Supreme Court, Bronx County (Vincent Vitale, J.), entered on or about December 19, 1989, which, after a hearing, granted the defendant’s motion for dismissal of the indictment pursuant to CPL 210.20 on the ground that the prosecution has failed to meet the statutory burden imposed by CPL 30.30, affirmed. The defendant was charged with hindering prosecution in the first degree in violation of Penal Law § 205.65. An indictment was filed on November 2, 1988. The defendant was arraigned on November 4, 1988. Appearances on the record began on February 27, 1989, and continued through a 7 day adjournment granted on October 4, 1989 without trial commencing. Of this time, Criminal Term charged 213 days to the People. We agree with the People that the time from May 17, 1989 through June 14, 1989 was improperly calculated as 31 days, rather than 28 days. Accordingly, we reduce the total number of days charged to 210. The People dispute 59 of these days. Twenty-four days from February 27, 1989 through March 23, 1989 were properly charged to the People, even though the record for February 27, 1989 reflects that defense counsel was not prepared to proceed on that date. The Court of Appeals has emphasized "that the right to a speedy trial guaranteed by CPL 30.30, which relates to prosecutorial readiness, is not dependent in any way on whether the defendant has expressed his readiness for trial or whether the defendant can demonstrate prejudice resulting from the delay” (People v Hamilton, 46 NY2d 932, 933-934). In the absence of any request by defense counsel for an adjournment or consent to the People’s request for an adjournment, the defense counsel’s failure to object actively to the People’s request will not constitute consent (People v Canale, 159 AD2d 817; cf., e.g., People v Pappas, 128 AD2d 556). On May 17, 1989, Criminal Term granted a 28 day adjournment sua sponte, after a bench conference off the record. Criminal Term properly charged the time of this sua sponte adjournment to the People (People v Meierdiercks, 68 NY2d 613). It is pure speculation on the part of the People that this off-the-record conference consisted of defense counsel either [111] requesting an adjournment or consenting to the People’s request for one. It makes no difference that the People had previously filed a notice of readiness, since this post-readiness delay cannot be said to have had no effect on the People’s readiness to proceed (People v McKenna, 76 NY2d 59). The 7 days beginning on October 4, 1989 were properly charged to the People, since that adjournment was granted on the People’s request based on the Assistant District Attorney’s involvement in another trial. Defense counsel did not bring the defendant’s speedy trial motion to the attention of the court or the trial assistant until after the People’s request for an adjournment had been made and granted. Concur—Milonas, Ross and Rubin, JJ.