People v. Gnesin

127 A.D.3d 652, 7 N.Y.S.3d 138

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 2015
• Docket: 14964 20125/12
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Tandra L. Dawson, J., at speedy trial motion; Juan M. Merchan, J., at hearing, nonjury trial and sentencing), rendered April 10, 2013, convicting defendant of attempted assault in the third degree and attempted endangering the welfare of a child, and sentencing him to a conditional discharge, unanimously affirmed.

The court properly denied defendant’s speedy trial motion. The certificate of readiness filed by the People was not illusory (see People v Sibblies, 22 NY3d 1174, 1180 [2014]; People v Brown, 126 AD3d 516 [1st Dept 2015]). The record supports the inference that even if the People might have preferred to call an uncooperative complainant as a witness, they were always prepared to proceed without her by relying on other evidence, as they ultimately did.

The court providently exercised its discretion in reopening the suppression hearing, after both sides had rested and presented oral argument but before any decision had been rendered, to allow the People to introduce additional testimony (see People v McCorkle, 111 AD3d 557 [1st Dept 2013], lv denied 24 NY3d 963 [2014]). Since the reopening occurred before the court had ruled on the motion, the restrictions on rehearings set forth in People v Kevin W. (22 NY3d 287, 289 [2013]) and People v Havelka (45 NY2d 636 [1978]) do not apply.

Concur— Tom, J.P., Sweeny, Manzanet-Daniels, Clark and Kapnick, JJ.