As we have discussed in previous blogs New York has a speedy trial statute than when used by a knowledgeable and experienced criminal defense lawyer can often help get a case dismissed or effect a better plea bargain. Often, when litigation begins over whether the "speedy trial clock" has run out on the prosecution, the prosecutor will try to claim that certain adjournments are excludeable from speedy trial calculations because the defendant had consented to the adjournment.
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. People v. Smith, 82 N.Y.2d 676, 678 (N.Y. 1993).
Defendant’s Failure to Object to Adjournment Not Consent: A mere failure by defense counsel to object to an adjournment does not constitute "consent" within the meaning of CPL 30.30 (4) (b). People v Liotta (79 NY2d 841, 843),
Defendant’s Agreeing to a New Date or Notice of a New Date Not Consent:
Defense counsel’s reply “That’s fine” is not deemed consent to an adjournment where court indicated it would notify the parties of the date by mail. “That’s fine” was simply an agreement to the method court would use to notify parties – it was not consent to adjournment. People v Brown, 69 A.D.3d 871 (2nd Dept. 2010) see also People v. Nunez, 47 A.D.3d 545 (1st Dept. 2008)(“Although defense counsel said "fine" in response to the trial court's suggestion of August 21 as an adjourned date, in context this amounted to a representation that such date was not inconvenient, but did not imply consent.”).
Defense Counsel Participating in Picking New Date Not Consent to Adjournment
In People v D.D., the court found that counsel’s response to the court’s questions about a convenient adjourn date did not qualify as defense counsel actively participating in setting that date such that consent to adjourn could be inferred and the time would be subject to exclusion. 2010 NY Slip Op 50837U, 4, 27 Misc. 3d 1221A (FN 2)(N.Y. City Crim. Ct. 2010).
In addition, a delay caused by plea negotiations is only excludable if the defense requested or consented to the delay. People v. Manning, 52 A.D.3d 1295 (4th Dept. 2008).
A defendant without counsel must not be deemed to have consented to a continuance unless he has been advised by the court of his rights under these rules and the effect of his consent. CPL 30.30(4)(b). Therefore, unless an unrepresented defendant is specifically advised of his right to a speedy trial and the consequences of his consent he may not be deemed to have consented even if he indicates that he is consenting to an adjournment.
In the end, It is the People's burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged. Where the People fail to satisfy this primary obligation, they must assume responsibility for the delay that follows the adjournment. People v. Cortes, 80 N.Y.2d 201, 215-216 (N.Y. 1992) see also People v. Reyes (Carlos), 24 Misc. 3d 51, 55 (N.Y. App. Term 2009)(“As the People failed to satisfy their burden of creating a record establishing that the period from August 10, 2005, to September 28, 2005, is excludeable on the basis of consent, and as they have established no other ground for its exclusion, it must be charged to them.” In other words if there is an ambiguity in the record, the People will be charged for the adjournment.