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THE DELAY IN PRODUCING THE DEFENDANT FOR ARRAIGNMENT AFTER THE PEOPLE BECAME AWARE HE WAS IN CUSTODY WAS ATTRIBUTABLE TO THE PEOPLE (A “CONTRADICTORY HOLDING” BY THE FOURTH DEPARTMENT WAS NOTED); DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO DISMISS ON SPEEDY TRIAL GROUNDS; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined the People were not timely ready for trial and defense counsel was ineffective for failing to move for dismissal on “speedy trial” grounds:

… [T]he People became aware that defendant was in the custody of DOCCS at the May 13, 2019 appearance, and they requested to have the arraignment adjourned to “May 28th, as soon as we can get [defendant] from downstate.” Yet, the record reflects that the People engaged in no efforts to have defendant produced until May 29, when they filed their application pursuant to CPL 560.10, and we reject their generic assertion that this constituted diligent and reasonable efforts … . The People could not proceed to trial without having first arraigned defendant and because the delay was caused by the People’s own inaction, the 16 days from May 13 through May 29 are chargeable to the People, thus exceeding the seven days remaining on the speedy trial clock. As such, we conclude that the People were not ready for trial within the applicable six-month statutory period … .

Having concluded that defense counsel failed to make a meritorious speedy trial motion, we must determine whether this failure, alone, was so egregious and prejudicial as to amount to ineffective assistance … . We reject the People’s contention that this speedy trial motion involved the resolution of various novel and complex issues … , as it has long been settled in this Department that CPL 560.10 (1) (a) imposes upon the People a “responsibility to petition the trial court for an order producing defendant for ‘arraignment or prosecution’ ” … — a principle which is not diminished by the Fourth Department’s contradictory holding in People v Taylor (57 AD3d at 1518-1519 …). As such, and noting that the timeline underlying the speedy trial analysis is uncontroverted, we find that defendant was denied meaningful representation due to defense counsel’s failure to pursue a meritorious speedy trial motion and, thus, his motion to vacate should have been granted … .. Lastly, as the time to prosecute defendant under this indictment has expired, the indictment must be dismissed. People v Shuler, 2024 NY Slip Op 05154, Third Dept 10-17-24

Practice Point: In the Third Department [but apparently not in the Fourth Department (People v Taylor (57 AD3d at 1518-1519)?] any delay in producing a defendant for arraignment after the People become aware the defendant is in custody is attributable to the People.

Practice Point: Defense counsel’s failure to move to dismiss on speedy-trial grounds is ineffective assistance.

 

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