This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 98
The People &c.,
            Respondent,
        v.
Scott Barden,
            Appellant.




          Richard M. Greenberg, for appellant.
          David M. Cohn, for respondent.




STEIN, J.:
          On this appeal, we are asked to determine who is
chargeable, for statutory speedy trial purposes, with each
discrete time period within a pre-readiness adjournment when the
People initially request an adjournment to a specific date,
defense counsel is unavailable on that date and requests a later

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date, but the court is unavailable on the later date, resulting
in an even longer adjournment.    Further, we must decide whether
defendant consented to the additional delay occasioned by the
court's calendar when, upon being advised by the court of its
next available date, counsel responded, "[t]hat should be fine."
Applying our general rules, we conclude that defendant did not
consent to the additional delay attributable to court congestion
and, because the People failed to announce readiness within the
statutory time period, defendant was entitled to dismissal of the
indictment on speedy trial grounds.
          Defendant was indicted on charges of identity theft in
the first degree, criminal possession of stolen property in the
fourth degree, and theft of services (two counts).    At several
court appearances, the People stated that they were not ready for
trial and requested adjournments.    During some of those
appearances, defense counsel asked for additional time beyond the
dates requested by the People.    Defendant subsequently moved to
dismiss the indictment based on, among other things, a violation
of his statutory speedy trial rights.    Supreme Court denied
defendant's motion without explanation, implicitly charging the
People with only the time actually requested by them and
excluding additional time resulting from defense counsel's other
obligations and court congestion.    Ultimately, the People did not
announce their readiness until the day of trial, more than 16
months after commencement of the criminal action.    After a jury


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trial, defendant was convicted as charged.   The Appellate
Division modified the judgment by dismissing the identity theft
count, but otherwise affirmed (117 AD3d 216 [1st Dept 2014]).    A
Judge of this Court granted defendant leave to appeal (24 NY3d
959 [2014]).
          Where, as here, a felony is included in an indictment,
the People must be ready for trial within six months, after
subtracting excludable time (see CPL 30.30 [1] [a]).   "[O]nce a
defendant has shown the existence of an unexcused delay greater
than . . . six months, the burden of showing that time should be
excluded falls upon the People" (People v Santos, 68 NY2d 859,
861 [1986]; see People v Santana, 80 NY2d 92, 105 [1992]).    Under
the relevant statute, a court can exclude "the period of delay
resulting from a continuance granted by the court at the request
of, or with the consent of, the defendant or his counsel" (CPL
30.30 [4] [b]; see People v Worley, 66 NY2d 523, 527 [1985]).    On
the other hand, pre-readiness delays arising from court
congestion or court scheduling problems are chargeable to the
People, because court delays do not prevent the People from being
ready or declaring readiness in a written off-calendar statement
(see People v Chavis, 91 NY2d 500, 504 [1998]; People v Smith, 82
NY2d 676, 678 [1993]; People v Kendzia, 64 NY2d 331, 337-338
[1985]; People v Brothers, 50 NY2d 413, 417 [1980]).   Indeed,
when the People are not ready and request an adjournment, a later
written "statement of readiness can save the People from


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liability for the remainder of the adjournment period" (People v
Stirrup, 91 NY2d 434, 436, 440 [1998]).
            In this case, the statutory six month period equated to
184 days.    Without explanation, Supreme Court charged the People
with 179 days; those days are not at issue on this appeal.
Rather, the question before us is whether, in calculating the
number of days chargeable to the People, the motion court
properly assigned partial responsibility to each of the parties
for three adjournments granted between January 5, 2011 and April
13, 2011.    In that regard, the parties primarily dispute the
meaning of certain language in this Court's decision in People v
Smith (82 NY2d 676 [1993]), in which we stated that
            "Adjournments consented to by the defense
            must be clearly expressed to relieve the
            People of the responsibility for that portion
            of the delay. Defense counsel's failure to
            object to the adjournment or failure to
            appear does not constitute consent. The
            adjournments at issue here were, in the first
            instance, precipitated by the People's
            failure to be ready for trial. Other than
            stating that certain dates were inconvenient,
            defense counsel never formally consented to
            the adjournments and did not participate in
            setting the adjourned dates. Because the
            actual dates were set either by the court or
            the prosecution, no justification exists for
            excluding the additional adjournment time
            required to accommodate defense counsel's
            schedule" (id. at 678 [internal citation
            omitted and emphasis added]).
            The question here distills to what constitutes
participation sufficient to establish a request for, or consent
to, an adjournment by defense counsel.    As quoted above, Smith


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states that counsel's mere failure to object to an adjournment,
or indication that a date requested by the People is
inconvenient, is not a request or a clear expression of consent
for purposes of calculating excludable time under CPL 30.30 (see
id. at 678).   In this case, counsel did more than merely state
that she was unavailable on the dates requested by the People.
For several time periods, she explained why she wanted more time.
The reasons she gave were for her own convenience, the demands of
defendant's case, and her court schedule for cases unrelated to
this defendant, none of which were based on any actions taken by
the People.    Therefore, it is crucial to determine what portion
of each adjournment period is chargeable to each party when, as
here, both the People and defendant seek additional time.
          For example, on January 5, 2011, the People requested
an adjournment until January 26, but defense counsel asked to
have until after February 8, stating she had "a date in the
Second Circuit on the 8th.   I just need to get that done."     The
court set the next appearance date for February 9.      On the speedy
trial motion, the court charged the People only with the time
from January 5 through January 26.      The court properly charged
defendant with the time period (from January 27 through February
9) when defense counsel had commitments on an unrelated federal
case and explicitly sought time to prepare herself for that
matter, because counsel explicitly requested and, by actively
participating in setting the later date, clearly expressed her


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consent to that additional time (see CPL 30.30 [4] [b]; People v
Fuller, 8 AD3d 204, 205 [1st Dept 2004], lv denied 3 NY3d 706
[2004]).
           Likewise, on February 9, 2011, when the People
requested an adjournment until February 23, defense counsel asked
for a date the following week.    At the same time, counsel stated
that she needed an investigator for defendant's case and
submitted documents seeking a court order to obtain one.     The
court set a date one week later than that requested by the
People.    On defendant's motion, the court charged the People with
the days they requested (from February 10 through February 23),
but charged defendant with the days thereafter.   In that
instance, defense counsel had indicated the need for time to hire
an investigator and for that person to conduct an investigation.
This request also constituted a clear expression of consent to a
longer adjournment than that sought by the People, rendering that
time (from February 24 through March 2) chargeable to defendant.
           Finally, on March 2, 2011, the People sought an
adjournment until March 16.   Defense counsel stated that, on that
date, she would be engaged in a civil trial which had begun two
years earlier, and she expressed her strong desire to complete
that trial.   Counsel, therefore, asked to extend the adjournment
until March 28.   The court responded, "It has to be after April
8th.   April 13th," to which counsel replied, "[t]hat should be
fine."    On the motion, the court properly charged the People with


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the days they requested (from March 2 through March 16), but
apparently excluded all of the time between March 17 and April 13
from the speedy trial calculation.    This was error.   Defendant
should have been charged only with the time that counsel
requested to conduct her separate civil trial -- that is, March
17 through March 28 -- and the People should have been charged
with the remaining time, as the portion of the adjournment from
March 29 through April 13 was required by the court, itself.
          Contrary to the People's argument, counsel's
accommodation of the court's schedule -- merely by failing to
express an objection to the alternate date proposed by the court
after it indicated that the date suggested by counsel was not
available -- cannot, under CPL 30.30, be considered consent to
the extension of the adjournment beyond March 28.    This Court has
held that "[a]djournments consented to by the defense must be
clearly expressed to relieve the People of the responsibility for
that portion of the delay" (Smith, 82 NY2d at 678 [emphasis
added]; see People v Liotta, 79 NY2d 841, 843 [1992]).     Such
consent does not arise by counsel merely indicating that a date
suggested by the court is convenient.    Thus, a defense counsel's
ambiguous comment such as "[t]hat should be fine" when the court
proposes a date is not sufficient to constitute clear consent to
defendant being charged with the entire adjournment, including
time necessitated by the court's calendar.    Rather, such a
generic statement likely signals nothing more than counsel's


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availability on a proposed date after the court has indicated
that it could not accommodate the date requested by defense
counsel when, in the first instance, the adjournment was
"precipitated by the People's failure to be ready for trial"
(Smith, 82 NY2d at 678).
          Additionally, as noted above, the People bear the
burden of establishing which time periods should be excluded from
the statutory six months, with no burden being placed on the
defendant (see Santana, 80 NY2d at 105; Santos, 68 NY2d at 861).
The general rule -- that the People should be charged with
pre-readiness delays caused by court congestion (see Chavis, 91
NY2d at 504; Stirrup, 91 NY2d at 440; Smith, 82 NY2d at 678;
Kendzia, 64 NY2d at 337-338; Brothers, 50 NY2d at 417) -- is
premised on the idea that such delays do not inhibit the People
from declaring readiness in writing, through an off-calendar
statement (see Smith, 82 NY2d at 678).   That reasoning applies
equally well to any portion of a pre-readiness adjournment that
is associated with court congestion, regardless of which party is
chargeable with the remaining portion or portions of that
adjournment.   Here, the People could have filed an off-calendar
statement of readiness at any time to stop the speedy trial
clock, but they never did so.   If the People were unsure of
whether defense counsel's statement was an indication of consent
to the entire period of the adjournment, they could have asked
for clarification on the record; again, the People did not do so.


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Because the People did not meet their burden, Supreme Court erred
to the extent it failed to charge the People with the 16 extra
days from March 29 through April 13, which the court, itself,
requested.   Because those 16 days put the People over the
statutory limit, defendant's CPL 30.30 motion should have been
granted and the indictment should have been dismissed.
          Defendant also challenges the legal sufficiency of two
counts of the indictment, asserting, among other things, that:
the term "credit card" in Penal Law §§ 165.45 (2) and 165.15 (1)
does not include intangible property, such as the numbers
associated with a credit card; and that defendant did not
constructively possess the credit card numbers, in that they were
provided to a hotel by the credit card owner and the hotel used
them to charge services at defendant's request -- beyond the
authority granted by the owner -- but defendant never saw or knew
the numbers.    While we recognize that there is a division among
the Appellate Division Departments on at least some of these
issues (compare 117 AD3d 216 [1st Dept 2014], with Matter of Luis
C., 124 AD3d 109 [2d Dept 2014]), we have no occasion to reach
them due to our resolution of this case on the dispositive speedy
trial ground.
          Accordingly, the order of the Appellate Division should
be reversed, defendant's CPL 30.30 motion granted, and the
indictment dismissed.




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*   *   *   *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order reversed, defendant's CPL 30.30 motion granted and
indictment dismissed. Opinion by Judge Stein. Chief Judge
DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Fahey and Garcia
concur.

Decided June 14, 2016




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