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

224
KA 11-00140
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD WHITE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

RONALD WHITE, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered December 14, 2010. The judgment convicted
defendant, upon a jury verdict, of rape in the third degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, for
further proceedings in accordance with the following Memorandum:
Defendant appeals from a judgment convicting him following a jury
trial of rape in the third degree (Penal Law § 130.25 [3]), arising
out of an incident that occurred on October 10, 2005. Defendant was
arrested on August 20, 2008 and indicted on February 19, 2009. We
reject defendant’s contention in his main brief that Supreme Court
erred in denying his motion to dismiss the original indictment
pursuant to CPL 30.30 (1) (a). Contrary to the contention of
defendant, the People complied with their obligation to be ready for
trial within six months of the commencement of the criminal action
(see CPL 30.30 [1] [a]). The People announced their readiness for
trial in open court on February 19, 2009, within the six-month period
(see People v Goss, 87 NY2d 792, 797; see generally People v Kendzia,
64 NY2d 331, 337). Although defendant was not arraigned until March
6, 2009, the time between the announcement of readiness and the
arraignment “is attributable solely to the court and not charged to
the prosecution” (Goss, 87 NY2d at 798; see People v Rickard, 71 AD3d
1420, 1421, lv denied 15 NY3d 809). In addition, we conclude that
because defendant received prompt written notice of the People’s
readiness for trial, despite the fact that defense counsel was not
present at the time of the announcement of readiness and the written
notice was sent to the wrong attorney, the People satisfied their
obligation to notify defendant of their readiness within the requisite
six-month period (see People v Roberts, 176 AD2d 1200, 1200-1201, lv
                                 -2-                           224
                                                         KA 11-00140

denied 79 NY2d 831; see generally People v Carter, 91 NY2d 795, 799).

     We reject defendant’s further contention in his main brief that
the court erred in denying his motion to dismiss the superseding
indictment on the ground that the People failed to comply with CPL
30.30 (1) (a). The superseding indictment, which only corrected the
date of the offense, related back to the commencement of the
proceeding for purposes of computing the six-month period (see People
v Sinistaj, 67 NY2d 236, 239).

     Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject the contention of defendant in his pro se supplemental brief
that the verdict is against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).

     Defendant further contends in his pro se supplemental brief that
his constitutional rights to a speedy trial and due process of law
were violated by the preindictment delay of approximately 40 months
(see generally People v Singer, 44 NY2d 241, 253-254; People v
Wheeler, 289 AD2d 959, 959-960). Defendant failed to raise that
contention before the trial court, and thus it is not preserved for
our review (see People v Faro, 83 AD3d 1569, 1569, lv denied 17 NY3d
858). Defendant also contends, however, that the failure of defense
counsel to move to dismiss the indictment on that ground deprived him
of effective assistance of counsel (see People v Edwards, 271 AD2d
812, 812). Because we cannot determine on this record whether
counsel’s failure to make that motion deprived defendant of meaningful
representation, we hold the case, reserve decision and remit the
matter to Supreme Court for a hearing to determine whether the
preindictment delay deprived defendant of his constitutional rights to
a speedy trial and due process (see id. at 812-813).




Entered:   March 16, 2012                      Frances E. Cafarell
                                               Clerk of the Court
