Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on April 1, 2026

2024-05909, (Ind. No. 70579/23)

Mark C. Dillon, J.P.

William G. Ford

Helen Voutsinas

James P. Mccormack, JJ.

[*1]

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Rockland County (Kevin F. Russo, J.), rendered July 3, 2024, convicting him of criminal contempt in the first degree, resisting arrest, and obstructing governmental administration in the second degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Rockland County, for resentencing in accordance herewith.

On July 1, 2023, the defendant was arraigned on a felony complaint. The defendant was subsequently charged in an indictment with, inter alia, criminal contempt in the first degree (Penal Law § 215.51[c]), resisting arrest (id. § 205.30), and obstructing governmental administration in the second degree (id. § 195.05). The People filed a certificate of compliance (hereinafter COC) and a statement of readiness (hereinafter SOR) on January 19, 2024, and filed a supplemental COC on February 21, 2024.

The defendant moved pursuant to CPL 30.30 to dismiss the indictment on the grounds that he was deprived of his statutory right to a speedy trial and that the initial COC was invalid and the SOR was illusory. The People opposed the motion. In an order entered April 8, 2024, the County Court denied the defendant's motion.

The defendant was convicted, after a nonjury trial, of criminal contempt in the first degree, resisting arrest, and obstructing governmental administration in the second degree, and was sentenced as a second felony offender.

Contrary to the defendant's contention, the County Court properly denied his motion pursuant to CPL 30.30 to dismiss the indictment. "'CPL 30.30 require[s] that the People be ready for trial within specific time periods that vary according to the level of offense charged'" (People v Blue, 42 NY3d 584, 596, quoting People v Bay, 41 NY3d 200, 207). Where, as here, a defendant is charged with a felony, the People must announce readiness for trial within six months of the commencement of the action (see CPL 30.30[1][a]; People v Blue, 42 NY3d at 596; People v [*2]Taback, 216 AD3d 673, 674; People v Perkins, 175 AD3d 1327, 1327). "A defendant seeking dismissal of the indictment on speedy trial grounds under CPL 30.30 meets his or her initial burden on the motion simply by alleging that the People failed to declare readiness within the statutorily prescribed period" (People v Perkins, 175 AD3d at 1327). "'[O]nce the defendant has shown the existence of a delay greater than six months, the burden of proving that certain periods within that time should be excluded falls upon the People'" (id., quoting People v Berkowitz, 50 NY2d 333, 349).

Here, the defendant sustained his initial burden on the motion by alleging that a period of delay in excess of six months had elapsed since the date that he was arraigned on the felony complaint. However, in opposition, the People demonstrated that certain days within that time period were excludable on the grounds, inter alia, that the parties were preparing and filing pretrial motions and the motions were under consideration by the court (see CPL 30.30[4][a]; People v Rodriguez, 224 AD3d 783, 783; People v Perkins, 175 AD3d at 1327).

Moreover, the People's initial COC was proper and the SOR was not illusory. "When a defendant moves pursuant to CPL 30.30 to dismiss an indictment 'on the ground that the People failed to exercise due diligence and therefore improperly filed a COC, the People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure'" (People v Hespinobarros, 245 AD3d 826, 828, quoting People v Bay, 41 NY3d at 213). "Due diligence 'is a familiar and flexible standard that requires the People to make reasonable efforts to comply with statutory directives'" (People v McMahon, 237 AD3d 746, 750 [internal quotation marks omitted], quoting People v Bay, 41 NY3d at 211). "'Although the relevant factors for assessing due diligence may vary from case to case, courts should generally consider, among other things, [1] the efforts made by the prosecution and the prosecutor's office to comply with the statutory requirements, [2] the volume of discovery provided and outstanding, [3] the complexity of the case, [4] how obvious any missing material would likely have been to a prosecutor exercising due diligence, [5] the explanation for any discovery lapse, and [6] the People's response when apprised of any missing discovery'" (id., quoting People v Bay, 41 NY3d at 212).

Here, the People's belated disclosures that accompanied the supplemental COC were made in good faith and with due diligence, were minimal, were not related to testifying witnesses, and were voluntarily provided to the defense once the People were made aware of the existence of the undisclosed materials (see People v Henderson, 237 AD3d 853, 854; People ex rel. Nieves v Maginley-Liddie, 232 AD3d 568, 570; People v Macaluso, 230 AD3d 1158, 1160).

Accordingly, the County Court correctly determined that the total time chargeable to the People was less than the six-month time period provided by CPL 30.30(1)(a), and inasmuch as the People's initial COC was proper, and the SOR was not illusory, the court properly denied the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial.

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review, as defense counsel made only a general motion for a trial order of dismissal, which failed to specify any particular error (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Ford, 11 NY3d 875, 878). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 349), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9 NY3d at 348-349; People v Romero, 7 NY3d 633).

However, the County Court erred in sentencing the defendant as a second felony [*3]offender without adjudicating him as such in compliance with the procedural requirements of CPL 400.21, or any showing that the defendant was given notice and an opportunity to be heard (see People v Marshall, 223 AD3d 756, 757; People v Smith, 127 AD3d 790, 791). Contrary to the People's contention, the defendant's claim here is not subject to the rule of preservation because the court did not advise the defendant that he would be sentenced as a second felony offender and he had no opportunity to object to the deficiency of the proceeding (see People v Marshall, 223 AD3d at 757).

Accordingly, we remit the matter to the County Court, Rockland County, for resentencing in accordance with the mandates of CPL 400.21.

DILLON, J.P., FORD, VOUTSINAS and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court