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DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DEFENSE COUNSEL RELIED ON A CONSTITUTIONAL SPEEDY TRIAL ARGUMENT WHEN DEFENDANT WAS ENTITLED TO DISMISSAL OF THE INDICTMENT PURSUANT TO THE SPEEDY TRIAL STATUTE (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defense counsel was ineffective because defendant was entitled to dismissal of the indictment pursuant to the speedy trial statute. Defense counsel was aware of the correct dates, but only argued defendant was deprived of his constitutional right to a speedy trial and did not correct County Court’s erroneous time calculation:

Although defense counsel set forth the pertinent dates of the commencement of the action and defendant’s arraignment, at which time the People announced their readiness for trial (see CPL 30.30 [1] [a]), he failed to argue that the relevant period exceeded six months and was a clear violation of defendant’s statutory speedy trial rights. Instead, defense counsel focused on the constitutional speedy trial claim. At oral argument of the motion, the court addressed the statutory speedy trial claim, set forth the pertinent dates, and then stated that, according to its calculation, “without specifically crunching the numbers, but by estimates, that is a period of five months and seven days.” After addressing the circumstances of the superceding indictment and the constitutional speedy trial claim, the court asked defense counsel if there were “any fact[s] that would be pertinent that [it] did not recite in discussing the matter.” Instead of pointing out the court’s erroneous calculation of the statutory speedy trial period, defense counsel stated, “I think my motion was essentially based on the 30.20 Constitutional speedy trial . . .” … . …

Here, although, as noted, defense counsel made a speedy trial claim, we conclude that there was no strategic or legitimate explanation for defense counsel’s failure to alert the court that it had inaccurately calculated that only five months and seven days had passed between the commencement of the action and the People’s statement of readiness and that, instead, more than six months had elapsed … . People v Bloodworth, 2019 NY Slip Op 05284, Fourth Dept 6-28-19

 

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