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Category Archives: App. Term 2d Dept.
There are new decisions from nearly every court!
First, the Court of Appeals (summaries of these will be posted later this week):
- People v. Dreyden (Ct. App. 6/15/2010) (Pigott, J.) (6-1) – accusatory instrument deficient if it does not demonstrate how a knife is a "gravity knife"
- People v. Mitchell (Ct. App. 6/15/2010) (Read, J.) (7-0) – transfer of case for probation supervision does not transfer authority to decide 440 motion
- People v. Ballman (Ct. App. 6/10/2010) (Lippman, C.J.) (7-0) – elevation of DWI for out of state conviction prior to 2006
- People v. McLean (Ct. App. 6/10/2010) (Smith, J.) (4-3) – preservation of right to counsel violation claim
- People v. Frederick (Ct. App. 6/10/2010) (7-0) – retrial issues
In pre-readiness, discovery periods are typically excludable. However, since the delay must be "reasonable," CPL § 30.30(4), the People can be charged with the time if they drag their proverbial feet in providing the defense with discovery. In post-readiness, however, the calculation is different.
In People v. Cecala (2d App. Term 5/5/2010), the local criminal court dismissed the misdemeanor prosecution on 30.30 grounds after the People failed to meet several discovery deadlines. However, the delay all occurred after the People had made an effective statement of readiness. Thus, the delay was due to the People's "alleged failure to comply with the defendant's discovery demands and
did not pose an impediment to commencement of the trial itself" and thus "the
[Criminal] Court erred in dismissing the [accusatory instrument] rather
than imposing a less severe sanction" (quoting People v. Caussade, 162 AD2d 4, 11 ). (LC)