3919-3920. PEOPLE, res, v. THEIN STEWART, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Sara N. Maeder of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for res — Appeal from order, Supreme Court, New York County (Gregory Carro, J.), entered on or about May 18, 2016, which denied defendant’s CPL 440.10 motion to vacate the judgment, held in abeyance, and the matter remanded for a hearing on defendant’s claim of ineffective assistance of counsel and a decision de novo on the motion. Appeal from judgment, same court and Justice, rendered March 27, 2013, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of 8 years, held in abeyance pending the aforesaid hearing and decision.
Defendant moved below to vacate his conviction pursuant to CPL 440.10, arguing that he had received ineffective assistance of counsel (see People v. Baldi, 54 NY2d 137, 146 [1981]; see also People v. Turner, 5 NY3d 476, 480-481 [2005]). Defendant asserted that his counsel was ineffective in prematurely filing “an otherwise-meritorious speedy trial motion” and submitted an affirmation from initial appellate counsel, but did not submit an affidavit from trial counsel.1 Specifically, defendant argued that counsel provided ineffective assistance by failing to argue that the People’s January certificate of readiness was illusory, and that counsel filed the speedy trial motion prematurely by failing to include three time periods in calculating chargeable time in support of the motion.2 The People asserted that counsel was effective and “zealously and ably advocated defendant’s cause.” The People stated that generally, DNA testing delays are excluded from the calculation of chargeable time, and therefore the calculation of chargeable time was not clear cut. As to the certificate of readiness, the People state that they were ready to proceed without the DNA evidence, that the certificate was not illusory, and therefore that there was no error in failing to contest the certificate of readiness.
