        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

196
KA 10-01674
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CORRENE G. SAWYER-PLATO, DEFENDANT-APPELLANT.


JOHN G. LEONARD, ROME, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


      Appeal from a judgment of the Oneida County Court (John S.
Balzano, A.J.), rendered September 16, 2008. The judgment convicted
defendant, upon a nonjury verdict, of misdemeanor driving while
intoxicated (two counts) and refusal to submit to a field screening
test.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her,
after a nonjury trial, of two counts of driving while intoxicated
(DWI) as a misdemeanor (Vehicle and Traffic Law § 1192 [2], [3]) and
refusal to submit to a field screening test (§ 1194 [1] [b]). On July
22, 2007, defendant was arraigned in Sylvan Beach Village Court on,
inter alia, two counts of DWI as a misdemeanor. A certified copy of
defendant’s abstract of driving record from the New York State
Department of Motor Vehicles (DMV abstract) indicated, however, that
defendant was convicted of DWI in Oneida City Court in Madison County
on August 26, 2004, and the People thus sought a felony DWI indictment
from the Oneida County grand jury. By indictment filed December 13,
2007, defendant was charged, inter alia, with two counts of DWI as a
felony, and she was arraigned on that indictment on January 4, 2008.
At that time, the People announced their readiness for trial.

     Thereafter, a certificate of conviction was produced that
demonstrated that the DMV abstract was erroneous, inasmuch as the
August 26, 2004 conviction in Oneida City Court was not for DWI but,
rather, was for driving while ability impaired (Vehicle and Traffic
Law § 1192 [1]), a violation. As a result, on February 26, 2008, the
People moved to amend the indictment to reduce the two DWI charges
from felonies to misdemeanors. County Court granted the motion over
defendant’s objection. Defendant thereafter moved, inter alia, to
dismiss the indictment, as amended, based on the alleged violation of
                                 -2-                           196
                                                         KA 10-01674

her statutory right to a speedy trial. According to defendant, the
People had 90 days in which to announce their readiness for trial (see
CPL 30.30 [1] [b]) and failed to do so. Defendant contended that she
was originally charged with misdemeanors, that the felony indictment
was based on erroneous documentation, and that, when the error was
discovered, the indictment was amended by reducing the felony counts
to misdemeanors, thus rendering applicable the 90-day time period
rather than the six-month time period. The court properly denied
defendant’s motion.

     As the Court of Appeals has written, “unless an event occurs
which triggers the specific contingencies of CPL 30.30 (5), [which is
not the case here,] the general rule articulated in CPL 30.30 (1)
controls the calculation of the readiness period throughout the
criminal action. Under that provision, the readiness time requirement
is based on the most serious offense charged in the criminal action,
measured from the date of filing of the first accusatory instrument”
(People v Cooper, 98 NY2d 541, 546; see People v Cooper, 90 NY2d 292,
294; People v Tychanski, 78 NY2d 909, 912). Here, the most serious
offenses charged in this case were the two felony counts of DWI.
While the documentation that defendant had a predicate DWI conviction,
which formed the basis for the felony charges, was later shown to be
erroneous, that does not negate the fact that “the most serious
offense charged in the criminal action” was a felony (Cooper, 98 NY2d
at 546). As a result, the People had six months in which to declare
their readiness for trial (see CPL 30.30 [1] [a]; People v Searles,
2003 NY Slip Op 51402[U]), and they timely did so on January 4, 2008.
Finally, we reject defendant’s further contention that the People’s
declaration of readiness on January 4 was rendered ineffective by the
subsequent reduction of the felony counts to misdemeanors.




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
