The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined defense counsel did not expressly consent to an adjournment which the court imposed because of court congestion. When the court stated the adjourned date, defense counsel said “that should be fine:”
This Court has held that “[a]djournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay” … . Such consent does not arise by counsel merely indicating that a date suggested by the court is convenient. Thus, a defense counsel's ambiguous comment such as “[t]hat should be fine” when the court proposes a date is not sufficient to constitute clear consent to defendant being charged with the entire adjournment, including time necessitated by the court's calendar. Rather, such a generic statement likely signals nothing more than counsel's availability on a proposed date after the court has indicated that it could not accommodate the date requested by defense counsel when, in the first instance, the adjournment was “precipitated by the People's failure to be ready for trial” … .
… [T]he 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 … . The general rule — that the People should be charged with pre-readiness delays caused by court congestion … — is premised on the idea that such delays do not inhibit the People from declaring readiness in writing, through an off-calendar statement … . 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 burden, Supreme Court erred to the extent it failed to charge the People with the 16 extra days …, which the court, itself, requested. Because those 16 days put the People over the statutory limit, defendant's CPL 30.30 motion should have been granted and the indictment should have been dismissed. People v Barden, 2016 NY Slip Op 04659, CtApp 6-14-16
CRIMINAL LAW (DEFENSE COUNSEL'S REMARK (THAT WOULD BE FINE) IN RESPONSE TO THE COURT'S INDICATION THAT COURT CONGESTION REQUIRED A LONGER ADJOURNMENT THAN DEFENSE COUNSEL REQUESTED WAS NOT EXPRESS CONSENT TO THE LONGER ADJOURNMENT, INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS)/SPEEDY TRIAL (DEFENSE COUNSEL'S REMARK (THAT WOULD BE FINE) IN RESPONSE TO THE COURT'S INDICATION THAT COURT CONGESTION REQUIRED A LONGER ADJOURNMENT THAN DEFENSE COUNSEL REQUESTED WAS NOT EXPRESS CONSENT TO THE LONGER ADJOURNMENT, INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS)