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THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED.

The First Department, reversing Supreme Court, determined defense counsel waived the speedy trial (CPL 30.30) rule. In response to the prosecutor’s request that the waiver go back to the date of the arraignment, defense counsel stated a preference that the waiver start at the time of the agreement to it, but “if you insist” waiver from arraignment would be acceptable. Supreme Court reasoned that the phrase “if you insist” required further negotiation (which did not take place). The First Department held that, based on the totality of the record, defense counsel agreed to starting the waiver at the time of arraignment:

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In assessing whether time is properly excluded, a court should look to the totality of the record … . Here, based on a fair reading of the whole record, we conclude that defense counsel expressly waived inclusion of the 52-day period. Central to the court’s reasoning was that the prosecutor “did not insist’ or otherwise respond” after defense counsel wrote “I’d be inclined to waive from today, but if you insist on 1/24 that’s acceptable.” However, in this exchange, “insistence” was not an eventuality that had to be confirmed by further action of the prosecutor, but an already clearly stated position. The prosecutor had already, in her March 16 email, insisted on a waiver of “all 30.30 time,” extending back to the arraignment — requiring such a total waiver as a condition of negotiations. She had explained that if defendant were not willing to waive all 30.30 time, the case would be presented to the current grand jury.

The March 17 email repeated, even more explicitly, the prerequisite — to which defendant had already agreed — that defendant waive speedy trial time going back to January 24. There was no need for the People to again insist on this because they had unequivocally insisted on it from the beginning of the conversation. As a realistic matter, the question whether the People insisted on this was not an open one, and defense counsel did not treat it as unresolved. He “accept[ed]” the waiver running back to the time of arraignment and promised to call the prosecutor the following week to make arrangements for a “presentation to you.” People v Lewins, 2017 NY Slip Op 04908, 1st Dept 6-15-17

 

CRIMINAL LAW (THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED)/SPEEDY TRIAL (WAIVER, THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED)

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