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

1022
KA 15-00925
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL A. HEWITT, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL A. HEWITT, DEFENDANT-APPELLANT PRO SE.

NIAGARA COUNTY DISTRICT ATTORNEY’S OFFICE, LOCKPORT (THOMAS H. BRANDT
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), rendered March 20, 2015. The judgment
convicted defendant, upon a jury verdict, of criminal obstruction of
breathing or blood circulation (two counts) and assault in the third
degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, assault in the third degree
(§ 120.00 [1]). Contrary to defendant’s contention in his main and
pro se supplemental briefs, 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 44-day prereadiness
delay between the filing of the felony complaints on November 2, 2013
and the People’s announcement of their readiness for trial in open
court on December 16, 2013 is well within the sixth-month period (see
People v Goss, 87 NY2d 792, 797; People v White, 93 AD3d 1181, 1181).
Although the People acquired new evidence from the victim’s cell phone
after they announced their readiness for trial, the People’s statement
of readiness was not illusory because the People could have proceeded
to trial without the cell phone evidence by presenting the testimony
of the victim and other witnesses (see People v Brown, 269 AD2d 809,
809, affd 96 NY2d 80; People v Watkins, 17 AD3d 1083, 1083, lv denied
5 NY3d 771; People v Bargerstock, 192 AD2d 1058, 1058, lv denied 82
NY2d 751). The period of postreadiness delay between May 15, 2014 and
September 15, 2014 is not chargeable to the People because it was the
result of “a continuance granted by the court at the request
of . . . the defendant or his counsel” (CPL 30.30 [4] [b]; see People
                                 -2-                          1022
                                                         KA 15-00925

v Green, 174 AD2d 1036, 1036, lv denied 78 NY2d 966). Even assuming,
arguendo, that the 84-day postreadiness delay between September 15,
2014 and December 8, 2014 is chargeable to the People because a death
in the prosecutor’s family does not constitute an “exceptional
circumstance[]” (CPL 30.30 [4] [g]; see People v DiMeglio, 294 AD2d
239, 240), the total prereadiness and postreadiness time chargeable to
the People is only 128 days. The record therefore establishes that
“ ‘the total period of time chargeable to the People is less than six
months’ ” (People v Brown, 82 AD3d 1698, 1699, lv denied 17 NY3d 792;
see People v Figueroa, 15 AD3d 914, 915).

     Defendant further contends in his main and pro se supplemental
briefs that he was denied his constitutional rights to a speedy trial
and due process of law. Upon our review of the relevant factors (see
People v Taranovich, 37 NY2d 442, 445), we conclude that defendant was
not deprived of his constitutional right to a speedy trial (see People
v Brooks, 140 AD3d 1780, 1780-1781), and we note in particular that
“ ‘there [was] a complete lack of any evidence that the defense was
impaired by reason of the delay’ ” (People v Walter, 138 AD3d 1479,
1480, lv denied, 27 NY3d 1141; see People v Schillawski, 124 AD3d
1372, 1373, lv denied 25 NY3d 1207). “Upon considering the Taranovich
factors, we [further] conclude that the delay did not deprive
defendant of his right to due process” (People v Williams, 120 AD3d
1526, 1527, lv denied 24 NY3d 1090; see People v White, 108 AD3d 1236,
1237, lv denied 22 NY3d 1044).

     Finally, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).




Entered:   November 10, 2016                    Frances E. Cafarell
                                                Clerk of the Court
