by
Drew R. DuBrin, Special Assistant Monroe County Public Defender
The Court of Appeals has just decided an important decision on what a defendant must do to preserve his claim that a period of unreadiness is not excludable from the 30.30 calculation.
As you know, in moving to dismiss on CPL 30.30 grounds, the defendant bears the burden of alleging in her motion papers a period of excessive pre-readiness and/or post-readiness delay . If the defendant meets that motion practice burden, the burden then shifts to the People to allege periods of delay that are excludable from the 30.30 calculation. Delay that can be excluded is set forth under 30.30’s subdivision 4.
In People v Beasley(__ NY3d _ , [3/24/11) , the Court of Appeals held that where the defendant has alleged in his motion papers a specified period of delay (in this case, it was delay caused by the People’s failure to provide the court with grand jury minutes, an impediment tot he People’s readiness for trial), the People respond to the defendant’s motion allegations by contending that the entire period of alleged delay is excludable from the calculation (in this case, pursuant to 30.30 [4] [a], the period of delay during which the defendant’s motion to dismiss on the grand jury minutes was pending), and the defendant does not reply to the People’s answering affirmation by arguing in the alternative that a particular portion of that entire period of delay is not excludable, the defendant will have failed to preserve for appellate review the alternative argument that the particular portion of the alleged delay is not excludable. The Court explained, “it was defendant’s duty, either in its initial submission or in a reply, to draw the court’s attention to the discrete periods that he now claims should have been chargeable to the people pursuant t CPL 30.30 and to explain why.”
Practice Commentary: The first lesson to be learned from this decision is that your 30.30 job may not done when you make your 30.30 motion to dismiss by simply alleging an excessive period of delay, without alleging in your papers why specific periods are not excludable. If the People in turn respond by alleging that certain periods are excludable, those periods will be deemed excludable unless you follow-up by submitting additional papers disputing that the period alleged to be excludable is not excludable and explaining why. Second, the appellate court will only consider not excluding the periods you specifically allege to be not excludable. If you argue that from January to July is not excludable because the People’s delay in responding to your omnibus motion was “unreasonable,” the appellate court will consider only whether that entire period was not excludable. It will not consider, for example, the alternative argument that the shorter period from May to July was not excludable as being unreasonable delay.
