Defense Counsel did not expressly consent to longer adjournment – The People bear the burden of Prov

The accused has the Constitutional Right to a Speedy Trial. Recently, the Supreme Court in Betterman declared the sole remedy for a speedy trial violation: dismissal. In New York State, the speedy trial right is codified in the New York Penal Law. New York State codifies that constitutional right to speedy trial and mandates the same and only remedy: dismissal.

Although a harsh remedy, New York Penal Law Section thirty sets forth certain criteria for determining when the clock starts to run and how the time is attributable to the People or the Defendant. Like the Supreme Court, The Court of Appeals recently took a case that affirms longstanding law in New York Stat: Consent to an adjournment by the Defense must be clear and unequivocal. Here the issue arises as to what occurs when the Court calendar, the People’s calendar and defense counsel’s calendar does not mesh: who is responsible for what period of time.

The Court of Appeals notes that, in this case, they 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 date, but the court is unavailable on the later date, resulting in an even longer adjournment.” Pp. 1-2. Issues of court congestion may have confused defendants and practitioners. Court congestion in New York State and New York City Criminal Courts have spawned long needed discussion (and potential legislation) addressing the speedy trial rule and its failure to address the People’s violations of citizens’ right to a speedy trial.

Like any good rule, there are exceptions. One such exception that is tackled here is what time should be attributable to which party when there are conflicting schedules. Defense can consent but such consent must be express. Such consent stops the speedy trial clock from running against the People’s time to answer and be ready for trial. Longstanding law is clear on the matter of defense consenting to later adjournments: People v Smith (82 NY2d 676 [1993]):

“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” Pp.3 (citing Smith, at 678 [internal citation omitted ]).

The Court of Appeals here, in Barden, spells it out clearly: “Smith 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″ Pp. 3. Barden takes it one step further, however, making it clear that time allotted by the Court beyond the time requested by Defense counsel is chargable to the People: “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.” Pp. 4.

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