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

579
KA 14-00118
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CHRISTOPHER M. AMRHEIN, DEFENDANT-APPELLANT.


MARCEL J. LAJOY, ALBANY, FOR DEFENDANT-APPELLANT.

ERIC R. SCHIENER, SPECIAL PROSECUTOR, GENESEO, FOR RESPONDENT.


     Appeal from a judgment of the Allegany County Court (Terrence M.
Parker, J.), rendered November 12, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal contempt in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the motion is granted, and the
indictment is dismissed.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of criminal contempt in the second degree (Penal
Law § 215.50 [3]). He was acquitted of all other charges, some of
which were felonies. Defendant contends on appeal that he was denied
his statutory right to a speedy trial and that County Court therefore
erred in denying his motion to dismiss the indictment pursuant to CPL
30.30. We agree.

     “A defendant seeking a speedy trial dismissal pursuant to CPL
30.30 meets his or her initial burden on the motion simply ‘by
alleging only that the prosecution failed to declare readiness within
the statutorily prescribed time period’ ” (People v Goode, 87 NY2d
1045, 1047; see People v Santos, 68 NY2d 859, 861). Here, defendant
met his initial burden. The criminal action was commenced by the
filing of a felony complaint on July 8, 2011 (see CPL 1.20 [17]), and
it is undisputed that the People did not announce their readiness for
trial until defendant was arraigned on April 12, 2012. Excluding July
8, 2011 (see General Construction Law § 20; People v Stiles, 70 NY2d
765, 767), that period amounts to 278 days. By establishing that the
People failed to announce their readiness within six months after July
8, 2011, which in this case totaled a period of 184 days (see CPL
30.30 [1] [a]), defendant met his initial burden on the motion (see
People v Beasley, 16 NY3d 289, 292; People v Wearen, 98 AD3d 535, 537,
lv denied 19 NY3d 1106; cf. People v Welch, 2 AD3d 1354, 1357-1358, lv
denied 2 NY3d 747). “The burden then shift[ed] to the People to
                                 -2-                           579
                                                         KA 14-00118

establish that a period should be excluded in computing the time
within which they were required to be prepared for trial” (People v
Sibblies, 22 NY3d 1174, 1177; see People v Sweet, 79 AD3d 1772, 1772).
We agree with defendant that the People failed to meet their burden of
establishing sufficient excludable time.

     Although the People established 66 days of excludable time for
the “period during which the defendant [was] without counsel through
no fault of the court” (CPL 30.30 [4] [f]), that amount of excludable
time is insufficient to bring the People within the statutory deadline
of 184 days. We reject the contention of the People that the period
of time during which the local criminal court failed to transmit the
order, felony complaint and other documents pursuant to CPL 180.30 (1)
to County Court is excludable time under the exceptional circumstances
exception (see CPL 30.30 [4] [g]). “[A]nalysis of cases where
‘exceptional circumstances’ have been found reveals two common
factors: (1) that the delay was due to circumstances beyond the
control of the District Attorney’s office; and (2) that it prevented
the prosecution from being ready for trial” (People v LaBounty, 104
AD2d 202, 204). Here, the failure of the local criminal court to
transmit the divestiture documents did not prevent the prosecutor from
presenting the case to a grand jury or being ready for trial (see
People v Talham, 41 AD2d 354, 355-356; cf. People v Mickewitz, 210
AD2d 1004, 1004-1005, lv denied 85 NY2d 977; LaBounty, 104 AD2d at
204-205). “The [g]rand [j]ury derives its power from the Constitution
and acts of the Legislature, and this power may not be interfered with
or infringed upon or in any way curtailed, absent a clear
constitutional or legislative expression” (Talham, 41 AD2d at 355).

     We further conclude that the People cannot rely on any alleged
consent of defendant to the delay inasmuch as “[c]onsent ‘must be
clearly expressed by the defendant or defense counsel to relieve the
People of responsibility for’ a delay” (People v Suppe, 224 AD2d 970,
971, quoting People v Liotta, 79 NY2d 841, 843). Here, as in Suppe,
the lengthy period of preindictment delay cannot be deemed excludable
time “on the ground that defendant requested or consented to the delay
in connection with ongoing plea negotiations” (id.). Rather, the
record establishes that “there was no continuance or adjournment of
court proceedings, with or without the consent of defendant or at his
request, and hence no period of exclusion pursuant to CPL 30.30 (4)
(b)” (id.). Thus, over 200 days are chargeable to the People, which
is well over the statutory maximum, and the court erred in denying
defendant’s motion to dismiss the indictment.




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
