107975________________________________THE PEOPLE OF THE STATE OFNEW YORK,Respondent,v. MEMORANDUM AND ORDERCODY D. SMART,Appellant.________________________________Calendar Date: May 31, 2018
Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Rumsey, JJ.__________Noreen McCarthy, Keene Valley, for appellant.Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C.Stitt of counsel), for respondent.__________Mulvey, J.Appeal from a judgment of the Supreme Court (Lawliss, J.),rendered October 5, 2015 in Clinton County, convicting defendantfollowing a nonjury trial of the crimes of endangering thewelfare of a child and criminal mischief in the fourth degree.On November 26, 2014, defendant was charged in separatemisdemeanor informations with criminal obstruction of breathing(two counts), endangering the welfare of a child and criminalmischief in the fourth degree stemming from an alleged domesticaltercation with his girlfriend. During an appearance onDecember 15, 2014, Supreme Court granted a 45-day continuance topermit defendant to file motions, and the People announced theirreadiness for trial. At the next appearance on February 9, 2015,the People made a plea offer to defendant, but Supreme Courtrefused to accept it. As a result, the People asked for anadjournment to prepare for trial, stating that they were notready to proceed and indicating that their previous declarationof readiness was premature. Supreme Court granted the requestand adjourned the matter without a return date. At an appearanceon June 15, 2015, defense counsel requested that the matter beput back on the calendar for a bench trial, and the Peopledeclared their readiness. Following a bench trial, defendant wasconvicted of endangering the welfare of a child and criminalmischief in the fourth degree, but acquitted of the remainingcharges. He was sentenced to 15 days in jail and three years ofprobation on each conviction, the sentences to run concurrently.Defendant now appeals.Defendant argues, and the People concede, that defendantwas deprived of meaningful representation as a consequence of hisattorney’s failure to make a pretrial motion to dismiss theaction on statutory speedy trial grounds. Where, as here, aclass A misdemeanor is the most serious offense of which adefendant is accused, the People have 90 days from thecommencement of the criminal action to declare their readiness(see CPL 30.30 [1] [b]; People v. Cooper, 98 NY2d 541, 543 [2002];People v. Wright, 88 AD3d 1154, 1156 [2011], lv. denied 18 NY3d 863[2011]). Compliance with this deadline is determined by“computing the time elapsed between the filing of the firstaccusatory instrument and the People’s declaration of readiness,subtracting any periods of delay that are excludable under theterms of the statute and then adding to the result anypostreadiness periods of delay that are actually attributable tothe People and are ineligible for an exclusion” (People v. Sydlar,106 AD3d 1368, 1369 [2013] [internal quotation marks andcitations omitted], lv. dismissed 21 NY3d 1046 [2013]). Here,although the People declared their readiness 19 days after theaccusatory instruments were filed and defendant was arraigned onthe charges, they expressly stated at the subsequent appearanceon February 9, 2015 that they were not ready for trial and soughtan adjournment for the very purpose of trial preparation. ThePeople did not thereafter declare their readiness until June 15,2015, beyond the 90-day period. Thus, as the People acknowledge,defendant possessed a meritorious statutory speedy trial claim,and defense counsel’s failure to raise it in a pretrial motion todismiss deprived defendant of meaningful representation (see CPL30.30 [1]; People v. Devino, 110 AD3d 1146, 1148-1149 [2013];People v. Grey, 257 AD2d 685, 686 [1999]). Accordingly, thejudgment is reversed and the accusatory instruments aredismissed.In light of our determination, defendant’s remainingcontentions are academic.Garry, P.J., Egan Jr., Aarons and Rumsey, JJ., concur.ORDERED that the judgment is reversed, on the law, andinformations dismissed.ENTER:Robert D. MaybergerClerk of the CourtState of New York Supreme Court, Appellate Division Third Judicial DepartmentDecided and Entered: July 5, 2018
