Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered October 7, 2014, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him to a term of 12 years, modified, on the law, to the extent of reducing the amounts of the mandatory surcharge and the crime victim assistance fees from $300 to $250 and $25 to $20, respectively, and otherwise affirmed.
Because of the unusual facts of this case, a detailed chronology is necessary to put our analysis into proper context.
On May 24, 2008, at approximately 1:00 a.m., defendant and [452] codefendant Jamal Armstead were outside 133 West 90th Street in Manhattan where a sweet 16 party was ending. They were approached by a female partygoer who told them that a person named Trimel Branford had insulted her at the party. Defendant and Armstead then proceeded to confront Branford. Intending to “avenge” the slight to her, Armstead pointed a gun at Branford and pulled the trigger twice, but the gun misfired. Armstead handed the gun to defendant who, after hitting it with his hand, pointed it at Branford and fired. The shot missed Branford but struck a 15-year-old bystander, who died from his wounds later that morning.
On May 28, 2008, the police arrested both Armstead and defendant. Armstead made statements to the police that implicated defendant in the shooting.
On July 2, 2008, both defendant and Armstead were charged, in a single indictment, with murder in the second degree, attempted murder in the second degree (two counts) and criminal possession of a weapon in the second degree. They were arraigned on these charges on July 7, 2008.
Defendant filed an omnibus motion on August 26, 2008, seeking, among other relief, severance of his case from Armstead’s on the ground that they had antagonistic defenses and that Armstead’s statements ran afoul of defendant’s right to confrontation under Bruton v United States (391 US 123 [1968]). The People responded to the motion on October 15 and, on October 23, 2008, the motion court denied defendant’s request to sever on antagonistic defense grounds, finding that defendant had not made any allegations demonstrating an antagonistic defense. The motion to sever on Bruton grounds was held in abeyance until resolution of Armstead’s motion to suppress his statements. The court adjourned the case for discovery until March 2, 2009, because defendant was awaiting receipt of the medical examiner’s report.
From March 2, 2009 to August 28, 2012, the date the court ruled on the admissibility of Armstead’s statements, the court adjourned the case numerous times either at the request of, or on consent of, defendant or Armstead. Additionally, between January 9, 2009 and June 30, 2011, Armstead consented to numerous adjournments requested by the People as the prosecutor attempted to negotiate a cooperation agreement with his counsel, meeting with Armstead and his counsel on several occasions.1
[453] On June 24, 2011, Armstead moved pro se for assignment of new counsel, which application was granted on July 14, 2011.
Armstead’s case was adjourned from March 2, 2010 to March 16, 2010 due to a fire in the courthouse. On September 21, 2010, the assigned ADA went on maternity leave, resulting in an adjournment to November 18, 2010. From July 14, 2011 until May 29, 2012, every adjournment was requested by Armstead’s counsel, either to prepare for trial or for personal reasons.
On July 21, 2011, the People announced their readiness for trial with respect to Armstead. It was the People’s intention to try Armstead first, on the theory that a conviction would give Armstead the incentive to testify against defendant. Armstead’s counsel was not ready for trial until May 29, 2012.
During this period, and while the current action was pending, defendant was involved in two assaults resulting in two additional indictments. The first, charging defendant with conspiracy and gang assault, was handed down on April 1, 2009 and was pending until March 8, 2013, when the indictment was dismissed. The second incident occurred on October 5, 2011 at the Manhattan Detention Center, where defendant and two other men assaulted another inmate. This indictment charged defendant with attempted gang assault in the first degree, attempted assault in the first degree and assault in the second degree. Defendant was convicted after trial of assault in the second degree and on June 10, 2013, was sentenced to a prison term of 4V2 years.
Between May 29 and June 12, 2012, a Huntley hearing was held with respect to the statements made by Armstead to the police. Armstead’s motion to suppress those statements was denied on August 28, 2012. At the conclusion of the hearing, Armstead’s counsel advised the court that he needed emergency cataract surgery and requested an adjournment. The People opposed further adjournments, noting the effect further adjournments might have on defendant’s case. Defendant joined in the People’s objection but the court granted Arm-stead’s request for an adjournment.
On October 9, 2012, Armstead’s first trial began and a partial verdict convicting him of criminal possession of a weapon in the second degree was rendered on October 25, 2012. Due to Hurricane Sandy, the court could not reconvene until November [454]*4547, 2012. Only 11 jurors returned and the court declared a mistrial on the remaining counts. The People informed the court that they intended to retry Armstead before trying defendant. Armstead’s counsel requested and received an adjournment to April 2013. On January 14, 2013, defendant, at his request, was assigned new counsel and his case was adjourned to February 14, 2013, so that new counsel could familiarize himself with the case.
On April 22, 2013, Armstead’s second trial began. On the same day, defendant’s unrelated gang assault trial also commenced. On May 15, 2013, Armstead’s second trial ended in a mistrial. The People immediately announced their readiness and requested a second retrial. However, Armstead’s counsel was not available to proceed until January 2014.
On May 7, 2013, defendant moved, for the first time, to dismiss the indictment on constitutional speedy trial grounds, which motion was denied on December 5, 2013.
On January 8, 2014, Armstead’s third trial began. It ended on January 31, 2013 when the jury acquitted him of murder in the second degree but could not reach a verdict on the two attempted murder counts, resulting in yet another mistrial as to those counts. On April 10, 2014, Armstead’s fourth trial was scheduled to begin on August 21, 2014. On June 11, 2014, defendant filed a second constitutional speedy trial motion, which he subsequently withdrew as part of his plea bargain.
Defendant pleaded guilty to manslaughter in the first degree on September 23, 2014 in full satisfaction of the indictment. He was promised a sentence of 12 years to run nunc pro tunc from the date of his arrest and concurrent with the 4V2 year sentence he was currently serving on the conviction for assault in the second degree. The agreed upon sentence was imposed on October 7, 2014.
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Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered October 7, 2014, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him to a term of 12 years, modified, on the law, to the extent of reducing the amounts of the mandatory surcharge and the crime victim assistance fees from $300 to $250 and $25 to $20, respectively, and otherwise affirmed.
Because of the unusual facts of this case, a detailed chronology is necessary to put our analysis into proper context.
On May 24, 2008, at approximately 1:00 a.m., defendant and [452] codefendant Jamal Armstead were outside 133 West 90th Street in Manhattan where a sweet 16 party was ending. They were approached by a female partygoer who told them that a person named Trimel Branford had insulted her at the party. Defendant and Armstead then proceeded to confront Branford. Intending to “avenge” the slight to her, Armstead pointed a gun at Branford and pulled the trigger twice, but the gun misfired. Armstead handed the gun to defendant who, after hitting it with his hand, pointed it at Branford and fired. The shot missed Branford but struck a 15-year-old bystander, who died from his wounds later that morning.
On May 28, 2008, the police arrested both Armstead and defendant. Armstead made statements to the police that implicated defendant in the shooting.
On July 2, 2008, both defendant and Armstead were charged, in a single indictment, with murder in the second degree, attempted murder in the second degree (two counts) and criminal possession of a weapon in the second degree. They were arraigned on these charges on July 7, 2008.
Defendant filed an omnibus motion on August 26, 2008, seeking, among other relief, severance of his case from Armstead’s on the ground that they had antagonistic defenses and that Armstead’s statements ran afoul of defendant’s right to confrontation under Bruton v United States (391 US 123 [1968]). The People responded to the motion on October 15 and, on October 23, 2008, the motion court denied defendant’s request to sever on antagonistic defense grounds, finding that defendant had not made any allegations demonstrating an antagonistic defense. The motion to sever on Bruton grounds was held in abeyance until resolution of Armstead’s motion to suppress his statements. The court adjourned the case for discovery until March 2, 2009, because defendant was awaiting receipt of the medical examiner’s report.
From March 2, 2009 to August 28, 2012, the date the court ruled on the admissibility of Armstead’s statements, the court adjourned the case numerous times either at the request of, or on consent of, defendant or Armstead. Additionally, between January 9, 2009 and June 30, 2011, Armstead consented to numerous adjournments requested by the People as the prosecutor attempted to negotiate a cooperation agreement with his counsel, meeting with Armstead and his counsel on several occasions.1
[453] On June 24, 2011, Armstead moved pro se for assignment of new counsel, which application was granted on July 14, 2011.
Armstead’s case was adjourned from March 2, 2010 to March 16, 2010 due to a fire in the courthouse. On September 21, 2010, the assigned ADA went on maternity leave, resulting in an adjournment to November 18, 2010. From July 14, 2011 until May 29, 2012, every adjournment was requested by Armstead’s counsel, either to prepare for trial or for personal reasons.
On July 21, 2011, the People announced their readiness for trial with respect to Armstead. It was the People’s intention to try Armstead first, on the theory that a conviction would give Armstead the incentive to testify against defendant. Armstead’s counsel was not ready for trial until May 29, 2012.
During this period, and while the current action was pending, defendant was involved in two assaults resulting in two additional indictments. The first, charging defendant with conspiracy and gang assault, was handed down on April 1, 2009 and was pending until March 8, 2013, when the indictment was dismissed. The second incident occurred on October 5, 2011 at the Manhattan Detention Center, where defendant and two other men assaulted another inmate. This indictment charged defendant with attempted gang assault in the first degree, attempted assault in the first degree and assault in the second degree. Defendant was convicted after trial of assault in the second degree and on June 10, 2013, was sentenced to a prison term of 4V2 years.
Between May 29 and June 12, 2012, a Huntley hearing was held with respect to the statements made by Armstead to the police. Armstead’s motion to suppress those statements was denied on August 28, 2012. At the conclusion of the hearing, Armstead’s counsel advised the court that he needed emergency cataract surgery and requested an adjournment. The People opposed further adjournments, noting the effect further adjournments might have on defendant’s case. Defendant joined in the People’s objection but the court granted Arm-stead’s request for an adjournment.
On October 9, 2012, Armstead’s first trial began and a partial verdict convicting him of criminal possession of a weapon in the second degree was rendered on October 25, 2012. Due to Hurricane Sandy, the court could not reconvene until November [454]*4547, 2012. Only 11 jurors returned and the court declared a mistrial on the remaining counts. The People informed the court that they intended to retry Armstead before trying defendant. Armstead’s counsel requested and received an adjournment to April 2013. On January 14, 2013, defendant, at his request, was assigned new counsel and his case was adjourned to February 14, 2013, so that new counsel could familiarize himself with the case.
On April 22, 2013, Armstead’s second trial began. On the same day, defendant’s unrelated gang assault trial also commenced. On May 15, 2013, Armstead’s second trial ended in a mistrial. The People immediately announced their readiness and requested a second retrial. However, Armstead’s counsel was not available to proceed until January 2014.
On May 7, 2013, defendant moved, for the first time, to dismiss the indictment on constitutional speedy trial grounds, which motion was denied on December 5, 2013.
On January 8, 2014, Armstead’s third trial began. It ended on January 31, 2013 when the jury acquitted him of murder in the second degree but could not reach a verdict on the two attempted murder counts, resulting in yet another mistrial as to those counts. On April 10, 2014, Armstead’s fourth trial was scheduled to begin on August 21, 2014. On June 11, 2014, defendant filed a second constitutional speedy trial motion, which he subsequently withdrew as part of his plea bargain.
Defendant pleaded guilty to manslaughter in the first degree on September 23, 2014 in full satisfaction of the indictment. He was promised a sentence of 12 years to run nunc pro tunc from the date of his arrest and concurrent with the 4V2 year sentence he was currently serving on the conviction for assault in the second degree. The agreed upon sentence was imposed on October 7, 2014.
The lodestar guiding our analysis of the speedy trial issue raised in this case is, of course, People v Taranovich (37 NY2d 442 [1975]). The Court held that “there is no specific temporal duration” that would mandate a dismissal on speedy trial grounds (id. at 444-445). Rather, a court must “examine the claim in light of the particular factors” present in the case before it, with the realization that “there are no clear cut answers in such an inquiry” (id. at 444-445). The analysis involves “a sensitive weighing process of the diversified factors present in the particular case” (id.). These factors “must be evaluated on an ad hoc basis” as they apply to the facts of each case (id.). Finally, the Court stressed that “no one factor or combination of the factors ... is necessarily decisive or [455] determinative of the speedy trial claim, but rather the particular case must be considered in light of all the factors as they apply to it” (id.).
The Court went on to list five factors that must be considered in any analysis of a speedy trial claim: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” (id.).
There is no question that the six-year delay between the shooting in 2008 and defendant’s guilty plea in 2014 was “extraordinary” (People v Staley, 41 NY2d 789, 792 [1977]). The burden is on the People to show good cause for the delay (People v Singer, 44 NY2d 241, 254 [1978]). This factor weighs in favor of defendant and leads to a consideration of the second Taranov-ich factor, i.e., the reason for the delay.
The chronology of this case highlights some of the problems faced by the courts of this state in large metropolitan areas. These include overburdened courts, overcrowded jails, and overworked prosecutors and legal services defense counsel. Nevertheless, these issues must be considered in the context of this particular case as they affect, if at all, this particular defendant.
The dissent tends to minimize the defense side of the equation in determining the reason for the delay, choosing to focus on the prosecution’s attempt to get Armstead to testify against defendant as the main reason for the delay in bringing him to trial. While the attempt to get Armstead to testify against defendant certainly played an important role in the delay, it is not the only reason and ignores the many other causes for the delay.
The above chronology shows that much of the delay was occasioned by requests for adjournments by defendant and/or his codefendant for motion practice, change of counsel, discovery proceedings, unavailability of co-defendant’s counsel and the like. In the analogous CPL 30.30 situation, adjournments granted with a codefendant’s consent are not chargeable to the People (see e.g. People v Kronberg, 277 AD2d 182, 183 [1st Dept 2000], lv denied 96 NY2d 785 [2001]; People v Delvalle, 265 AD2d 174 [1st Dept 1999], lv denied 94 NY2d 879 [2000]), and they should not be chargeable here. Despite the dissent’s conclusion to the contrary, the record supports the conclusion that these adjournments were not motivated by a goal on the part of the People to gain an unfair tactical advantage over de[456] fendant (see People v Brown, 138 AD3d 491 [1st Dept 2016], lv denied 27 NY3d 1129 [2016]).
Indeed, Armstead either requested or consented to several adjournments between January 9, 2009 and June 30, 2011. He also actively participated with counsel in meetings and discussions concerning the possibility of testifying against defendant. The dissent posits that the People should have abandoned such efforts after Armstead repeatedly refused to testify, and that the continuation of these efforts are evidence of their overall bad faith in delaying bringing defendant to trial. To support this conclusion, the dissent contends that the People do not claim that Armstead’s testimony was “essential to its case” and thus, by their continued attempts to obtain his cooperation, they demonstrated a lack of good faith. However, no precedent is cited for the proposition that, in order to demonstrate good faith, the testimony of a codefendant needs to be “essential” to the prosecution’s case. Nor can such a rule be inferred from People v Kelly (38 NY2d 633 [1976]), as cited by the dissent. While the Court of Appeals categorized the testimony of an incapacitated witness in that case as “essential” to the People’s case in an essentially one witness case (id. at 636), it did not make that term a requirement to demonstrate good faith efforts on the part of the People in attempting to obtain witness testimony. In point of fact, the Court was following its own precedent set out in Taranovich that, in analyzing a speedy trial claim, “no one factor or combination of the factors” set out there is determinative of the speedy trial issue, “but rather the particular case must be considered in light of all the factors as they apply to it” (Taranovich, 37 NY2d at 445). Indeed, to adopt such a rigid rule, as suggested by the dissent, would negate the individual case analysis mandated by Taranovich.
Whether “essential” or not, it is clear from the result of the several trials of Armstead that his testimony would, as the People contend, “significantly enhance the overall nature and quality of the evidence against . . . defendant.” The point is made by the fact that Armstead was acquitted on the murder count and that three separate juries were not able to reach a verdict on the two attempted murder counts in the indictment. Although the dissent contends this case, while serious, is not complex in light of the fact that the shooting took place in front of many witnesses who were available to the People, those same witnesses surely testified in Armstead’s trials and were obviously not particularly convincing. Armstead’s statements to the police implicating defendant in the shooting thus take on a heightened significance and justify the People’s repeated attempts to obtain his testimony against defendant.
[457] In any event, it is not for the courts to second guess “the significant amount of discretion that the People must of necessity have” in the prosecution of an indictment (People v Decker, 13 NY3d 12, 15 [2009]), so long as they act in good faith. Indeed, “a determination made in good faith to delay prosecution for sufficient reasons will not deprive [a] defendant of due process even though there may be some prejudice to defendant” (id. at 14, quoting People v Vernace, 96 NY2d 886, 888 [2001]). There is nothing in this record to support the contention that the People acted in anything other than in good faith in seeking to obtain Armstead’s testimony.
While it is true that the People changed the ADAs handling the case several times, these changes were made for valid reasons, such as maternity leave, and were not designed to delay the trial of either defendant, or to gain a tactical advantage thereby (People v Brown, 138 AD3d at 491).
Additionally, there were several incidents occasioning delay beyond the control of either party, such as a fire in the courthouse and Hurricane Sandy. On the whole, therefore, this factor favors the People.
It is uncontested that the third Taranovich factor — the nature of the underlying charge — clearly weighs in favor of the People. The defendant was charged, inter alia, with the murder of a 15-year-old bystander. It is expected that the People would “proceed with far more caution and deliberation” in such a case as opposed to a relatively minor offense (People v Taranovich, 37 NY2d at 446). Defendant contends however, that this does not justify the lengthy delay in this case. This overlooks the fact that the People should not be faulted for trying to develop the strongest case possible against this defendant, the individual who actually fired the fatal shot. This is particularly true in light of the results of Armstead’s jury trials, as noted above.
With respect to the fourth factor, there has been a significant period of pretrial incarceration, a factor that favors defendant. However, as noted above, during a significant portion of this time, defendant was also under indictment for two other assault charges, one of which resulted in a conviction and sentence of 4V2 years. We have consistently held that the time during which a defendant is incarcerated on other charges is not charged to the People (see People v Jackson, 178 AD2d 305, 305-306 [1st Dept 1991], lv denied 79 NY2d 948 [1992]; People v Davis, 197 AD2d 375, 376 [1st Dept 1993], lv denied 82 NY2d 893 [1993]; People v Neal, 208 AD2d 400, 400 [1st Dept 1994], lv denied 84 NY2d 1014 [1994]; People v Allen, 203 AD2d 97, [458]*45897-98 [1st Dept 1994], lv denied 83 NY2d 963 [1994]). The claim by defendant, adopted by the dissent, that perhaps defendant would not have been involved in these incidents had he not been incarcerated awaiting trial in the instant case is nothing more than sheer speculation and wishful thinking, particularly in light of the fact that he fired a weapon directly at an individual to avenge a perceived slight to another person.
Finally, as to the fifth Taranovich factor, defendant has not shown any prejudice as a result of the delay to warrant a dismissal of this indictment. While the dissent disagrees with this conclusion, it should be noted that there is no claim that his incarceration made it difficult for him to participate in his defense, or confer with his counsel. General allegations that witnesses were “likely” to forget information or become unavailable is not sufficient to demonstrate the prejudice necessary to have this factor favor the defendant (People v Romeo, 12 NY3d 51, 58 [2009], cert denied 558 US 817 [2009]). Certainly “some degree of prejudice will result” from lengthy pretrial incarceration; however, general allegations of prejudice do not establish that the defense was “significantly impaired by the delay” (People v Decker, 13 NY3d at 15-16).
The dissent distorts our writing by stating we “downplay! ] society’s interest in prompt prosecution” because this interest is not addressed in Taranovich. Nothing herein even suggests such a conclusion. Unjustified delays in prosecuting those accused of a crime inure to no one’s benefit: not prosecutors, nor defendants, nor society as a whole. We take no issue with the fact that actual prejudice need not be shown except in preindictment delay cases (see People v Staley, 41 NY2d at 792). The point here, as the dissent correctly notes, is that general claims of “presumptive prejudice cannot alone carry a Sixth Amendment claim [,] . . . it is part of the mix of relevant facts, and its importance increases with the length of delay” (Doggett v United States, 505 US 647, 655-656 [1992]). This, of course, is wholly consistent with Taranovich’s mandate that all factors must be considered and applied to each individual case to determine if a defendant’s right to prompt prosecution has been violated.
The dissent conflates two separate and distinct penal concepts in taking exception to our conclusion regarding the fifth factor. The prejudice required to meet the Taranovich factor is not the same as what can only be characterized as a claim of a lost opportunity for rehabilitation. Taranovich speaks to incarceration affecting a defendant’s ability to defend against the charges brought against him or her and the impact such [459] prejudice has on his or her chances for an acquittal. It does not address rehabilitation issues. Although the dissent uses generic studies and the like2 to support the claim of bad faith on the part of the People, these have no application to this defendant in this case since, as we noted at length above, there is nothing in this record to even remotely support the dissent’s contention that the decision to try Armstead first and then continue to try him before this defendant, was based on anything other than prosecutorial discretion made in good faith. Thus, this factor favors the People.
We conclude, therefore, that the motion court properly denied defendant’s constitutional speedy trial claim.
Defendant made a valid waiver of his right to appeal (see People v Sanders, 25 NY3d 337, 341 [2015]; People v Lopez, 6 NY3d 248, 256-257 [2006]), which forecloses review of his excessive sentence claim. Regardless of whether defendant validly waived his right to appeal, we perceive no basis for reducing the sentence.
As the People concede, since defendant committed the crime before the effective dates of legislation increasing the mandatory surcharge and crime victim assistance fees, he is entitled to the modification indicated.
Concur — Tom, J.P., Sweeny and Richter, JJ.