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

1017
KA 11-00105
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                      V                             MEMORANDUM AND ORDER

DESHAUN FULMER, DEFENDANT-RESPONDENT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Onondaga County Court (Joseph E.
Fahey, J.), dated July 7, 2010. The order granted the motion of
defendant to dismiss the first superceding indictment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, the motion is denied, the first
superseding indictment is reinstated and the matter is remitted to
Onondaga County Court for further proceedings on that indictment.

     Memorandum: The People appeal from an order granting defendant’s
motion to dismiss the first superseding indictment on statutory speedy
trial grounds (see CPL 30.30 [1] [a]). We agree with the People that
defendant’s statutory speedy trial rights were not violated and thus
that reversal is required. The People declared their readiness for
trial within six months of the filing of the first accusatory
instrument (see CPL 30.30 [1] [a]; see generally People v Carter, 91
NY2d 795, 798). County Court granted defendant’s motion to dismiss
the first superseding indictment on the ground that the People were
charged with periods of postreadiness delay when they failed to act
for a period of at least three weeks in obtaining a second saliva
sample from defendant for DNA testing upon realizing that the first
sample had been erroneously destroyed. “[P]ostreadiness delay may be
charged to the People when the delay is attributable to their inaction
and directly implicates their ability to proceed to trial” (Carter, 91
NY2d at 799). Here, the absence of the DNA sample did not implicate
the People’s ability to proceed to trial inasmuch as the People
remained ready to proceed to trial even in the absence of the DNA test
results (see People v Wright, 50 AD3d 429, 430, lv denied 10 NY3d 966;
People v Bargerstock, 192 AD2d 1058, lv denied 82 NY2d 751).

Entered:    September 30, 2011                    Patricia L. Morgan
                                                  Clerk of the Court
