People v. Abdullah , 20 N.Y.S.3d 659 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 5, 2015 106806
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
RAMAL B. ABDULLAH,
Appellant.
________________________________
Calendar Date: September 17, 2015
Before: Peters, P.J., McCarthy, Garry and Rose, JJ.
__________
Steven C. Buitron, Syracuse, for appellant.
Gerald F. Mollen, District Attorney, Binghamton (Rita M.
Basile of counsel), for respondent.
__________
Rose, J.
Appeal from a judgment of the County Court of Broome County
(Cawley, J.), rendered November 20, 2013, upon two verdicts
convicting defendant of the crimes of criminal possession of a
controlled substance in the fifth degree, criminal possession of
a controlled substance in the seventh degree, resisting arrest
and aggravated unlicensed operation of a motor vehicle in the
third degree (two counts).
In April 2012, defendant was charged by a multicount
indictment with various crimes stemming from a series of
encounters with police in December 2010, March 2011, April 2011
and October 2011. Defendant thereafter made multiple motions to
dismiss the indictment on speedy trial grounds and alternatively
moved for, among other things, severance from the remaining
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charges of two counts of criminal possession of a controlled
substance arising from his April 2011 arrest. County Court
partially granted defendant's first speedy trial motion,
dismissing two counts of the indictment stemming from the
December 2010 and March 2011 incidents, and otherwise denied his
remaining motions relevant to this appeal. A series of jury
trials and resulting mistrials followed resulting in partial
verdicts convicting defendant of criminal possession of a
controlled substance in the fifth degree, criminal possession of
a controlled substance in the seventh degree, resisting arrest
and aggravated unlicensed operation of a motor vehicle in the
third degree (two counts). Defendant was then sentenced, and he
now appeals.
We cannot agree with defendant's contention that the People
violated his statutory right to a speedy trial. Where, as here,
a defendant is indicted on multiple charges, at least one of
which is a felony, CPL 30.30 (1) (a) requires the People to
declare their readiness for trial within six months of the
commencement of the criminal action, which is marked by the
filing of the first accusatory instrument (see CPL 1.20 [16],
[17]; People v Cooper, 98 NY2d 541, 543 [2002]; People v Lowman,
103 AD3d 976, 976-977 [2013]). To determine whether the People
timely declared readiness, courts must "compute[] the time
elapsed between the filing of the first accusatory instrument and
the People's declaration of readiness, subtract[] any periods of
delay that are excludable under the terms of the statute and then
add[] to the result any postreadiness periods of delay that are
actually attributable to the People and are ineligible for an
exclusion" (People v Manchester, 123 AD3d 1285, 1286 [2014], lv
denied 26 NY3d 931 [2015] [internal quotation marks and citations
omitted]; see People v Carter, 91 NY2d 795, 798-799 [1998]).
Defendant was indicted on April 20, 2012 and the People
declared their readiness for trial the same day. As relevant
here, the indictment contained charges from two separate criminal
actions, the earliest of which was commenced by the filing of a
felony complaint on April 2, 2011. The People concede that they
are chargeable for a prereadiness delay of 151 days between the
filing of the complaint and a hearing scheduled for August 31,
2011. Defendant did not appear at that hearing, however,
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prompting his counsel to request an adjournment, which was
granted. At the next court appearance, on September 28, 2011,
defendant was present, but he again was granted, at his counsel's
request, a one-week adjournment to pursue further plea
negotiations. In light of the fact that the foregoing delays
were the result of adjournments "granted by the court at the
request of, or with the consent of, . . . defendant or his
counsel" (CPL 30.30 [4] [b]; see People v Kopciowski, 68 NY2d
615, 616-617 [1986]; People v Manchester, 123 AD3d at 1286-1287),
the time period between August 31, 2011 and October 5, 2011 is
not chargeable to the People.
On October 5, 2011, still unable to reach a plea agreement,
defendant explicitly waived his speedy trial rights in open court
to allow for more time to negotiate. On November 9, 2011,
defense counsel informed the court that defendant had been
arrested again on October 31, 2011 and that he was engaged in
ongoing discussions with the People in an effort to "reach a
global resolution." Between that time and April 20, 2012, the
date on which defendant was indicted and the People declared
their readiness for trial, negotiations apparently continued, as
nothing in the record indicates that defendant ever rescinded his
waiver. Thus, because "defendant[] . . . explicitly waived [his]
speedy trial rights in order to complete ongoing plea
negotiations," the time period between October 5, 2011 and April
20, 2012 is also excludable (People v Waldron, 6 NY3d 463, 467
[2006]; see People v Garcia, 33 AD3d 1050, 1052 [2006], lv denied
9 NY3d 844 [2007]; People v Dougal, 266 AD2d 574, 576 [1999], lv
denied 94 NY2d 879 [2000]).
As for defendant's allegations of postreadiness delays
attributable to the People, we note that County Court originally
scheduled defendant's trial to begin on November 26, 2012, but
later rescheduled it for April 15, 2013 due to defendant's
request for an adjournment, making this period of delay almost
entirely attributable to defendant (see People v Simmons, 252
AD2d 825, 826 [1998]). While defendant correctly contends that
the People were granted two postreadiness adjournments – totaling
11 days – during the same time period, even if we were to assume
that "the cause of the[se] delay[s] directly implicate[d] the
People's ability to proceed with trial" (People v Cortes, 80 NY2d
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201, 210 [1992]; see People v Dushain, 239 AD2d 151, 153 [1997],
lv denied 91 NY2d 1007 [1998]), and are, therefore, chargeable to
the People, their declaration of readiness would still be timely
pursuant to the requirements of CPL 30.30 (1) (a). Thus,
defendant was not denied his statutory right to a speedy trial.
Furthermore, upon consideration of the factors enunciated in
People v Taranovich (37 NY2d 442, 445 [1975]), we find no
constitutional speedy trial violation (see People v Mercer, 105
AD3d 1091, 1093 [2013], lv denied 21 NY3d 1017 [2013]; People v
Pitt, 43 AD3d 1248, 1249 [2007], lv denied 9 NY3d 1008 [2007]).
Nor can we agree with defendant's argument that County
Court erred in denying his motion to sever the two counts
charging him with criminal possession of a controlled substance
from the remainder of the indictment. Where, as here, offenses
arise from separate criminal transactions, they are nonetheless
joinable in a single indictment if, among other things, "proof of
the first offense would be material and admissible as evidence in
chief upon a trial of the second" (CPL 200.20 [2] [b]; see People
v McCloud, 121 AD3d 1286, 1288-1289 [2014], lv denied 25 NY3d
1167 [2015]). On the occasion of each of the two separate
criminal transactions here, defendant was operating with a
suspended driver's license, which led to separate, additional
charges of aggravated unlicensed operation of a motor vehicle in
the third degree (hereinafter AUO). Inasmuch as evidence of the
April 2011 AUO charge would be material and admissible in a trial
on the October 2011 AUO charge (see Vehicle and Traffic Law § 511
[1]), those two charges were properly joined. Further, the drug
possession charges were properly joined with the AUO charge that
arose out of the same criminal transaction (see CPL 200.20 [2]
[a]). Because the offenses were properly joined pursuant to CPL
200.20 (2) (a) and (b), "the court lacked statutory authority to
sever [them]" (People v Bongarzone, 69 NY2d 892, 895 [1987]; see
CPL 200.20 [3]).
Defendant's remaining claim of "malicious prosecution" is
without merit.
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Peters, P.J., McCarthy and Garry, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court