SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

224 

KA 11-00140 

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RONALD WHITE, DEFENDANT-APPELLANT.

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,

JR., OF COUNSEL), FOR DEFENDANT-APPELLANT. 

RONALD WHITE, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (John L.

Michalski, A.J.), rendered December 14, 2010. The judgment convicted

defendant, upon a jury verdict, of rape in the third degree. 

It is hereby ORDERED that the case is held, the decision is

reserved and the matter is remitted to Supreme Court, Erie County, for

further proceedings in accordance with the following Memorandum: 

Defendant appeals from a judgment convicting him following a jury

trial of rape in the third degree (Penal Law § 130.25 [3]), arising

out of an incident that occurred on October 10, 2005. Defendant was

arrested on August 20, 2008 and indicted on February 19, 2009. We

reject defendant’s contention in his main brief that Supreme Court

erred in denying his motion to dismiss the original indictment

pursuant to CPL 30.30 (1) (a). Contrary to the contention of

defendant, the People complied with their obligation to be ready for

trial within six months of the commencement of the criminal action

(see CPL 30.30 [1] [a]). The People announced their readiness for

trial in open court on February 19, 2009, within the six-month period

(see People v Goss, 87 NY2d 792, 797; see generally People v Kendzia,

64 NY2d 331, 337). Although defendant was not arraigned until March

6, 2009, the time between the announcement of readiness and the

arraignment “is attributable solely to the court and not charged to

the prosecution” (Goss, 87 NY2d at 798; see People v Rickard, 71 AD3d

1420, 1421, lv denied 15 NY3d 809). In addition, we conclude that

because defendant received prompt written notice of the People’s

readiness for trial, despite the fact that defense counsel was not

present at the time of the announcement of readiness and the written

notice was sent to the wrong attorney, the People satisfied their

obligation to notify defendant of their readiness within the requisite

six-month period (see People v Roberts, 176 AD2d 1200, 1200-1201, lv
-2- 224 

KA 11-00140 

denied 79 NY2d 831; see generally People v Carter, 91 NY2d 795, 799). 

We reject defendant’s further contention in his main brief that

the court erred in denying his motion to dismiss the superseding

indictment on the ground that the People failed to comply with CPL

30.30 (1) (a). The superseding indictment, which only corrected the

date of the offense, related back to the commencement of the

proceeding for purposes of computing the six-month period (see People

v Sinistaj, 67 NY2d 236, 239). 

Viewing the evidence in light of the elements of the crime as

charged to the jury (see People v Danielson, 9 NY3d 342, 349), we

reject the contention of defendant in his pro se supplemental brief

that the verdict is against the weight of the evidence (see generally

People v Bleakley, 69 NY2d 490, 495). 

Defendant further contends in his pro se supplemental brief that

his constitutional rights to a speedy trial and due process of law

were violated by the preindictment delay of approximately 40 months

(see generally People v Singer, 44 NY2d 241, 253-254; People v

Wheeler, 289 AD2d 959, 959-960). Defendant failed to raise that

contention before the trial court, and thus it is not preserved for

our review (see People v Faro, 83 AD3d 1569, 1569, lv denied 17 NY3d

858). Defendant also contends, however, that the failure of defense

counsel to move to dismiss the indictment on that ground deprived him

of effective assistance of counsel (see People v Edwards, 271 AD2d

812, 812). Because we cannot determine on this record whether

counsel’s failure to make that motion deprived defendant of meaningful

representation, we hold the case, reserve decision and remit the

matter to Supreme Court for a hearing to determine whether the

preindictment delay deprived defendant of his constitutional rights to

a speedy trial and due process (see id. at 812-813). 

Entered: March 16, 2012 Frances E. Cafarell

Clerk of the Court