AD2 order dated May 27, 2015, reversing the judgment and dismissing the indictment on CPL 30.30 grounds. Decision below: 128 AD3d 1081, 11 NYS3d 190. Fahey, J., granted leave to People September 3, 2015. To be argued September 6, 2016.

ISSUE PRESENTED: Whether the Appellate Division correctly held that defendant’s 30.30 claim was preserved for appellate review, even though the defense failed to submit a reply 30.30 affirmation, since the 30.30 court expressly decided the issue. (Assigned counsel: Joshua Levine & Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)

Issue:  Whether a defendant must file a reply identifying any “legal or factual impediments” to properly preserve a C.P.L. 30.30 speedy trial claim for appellate review.

 

Held:  Although defendants are encouraged to file replies to ensure that the appropriate legal and factual arguments are raised, they are not necessary to preserve a claim on appeal “where, as here, the defendant properly requests and receives a hearing and, at that hearing, his arguments are raised and developed.”

 

CAL Observes:  Prior to Allard, appellate courts had been finding statutory speedy trial claims unpreserved due to defense counsel’s failure to file a reply to the prosecution’s opposition.  Citing the “basic rules of preservation,” the Allard Court now puts to rest the notion that a reply is necessary if the legal and factual arguments are set forth in the original motion papers or at a 30.30 hearing.  Also significant is the Court’s analysis of the procedures set forth in C.P.L. 210.45 for dismissal motions in the context of speedy trial claims.  Pursuant to C.P.L. 210.45, trial courts must conduct hearings on 30.30 motions unless the prosecution “‘conclusively refuted’ defendant’s motion ‘by unquestionable documentary proof.’”  This is a high threshold for prosecutors to meet.  While it was common practice for courts to summarily deny 30.30 motions, it will be interesting to see whether Allard tempers this practice.  Moreover, in addition to requesting dismissal of the indictment as a remedy on appeal, Allard provides appellants with an alternative remedy when raising 30.30 claims:  a remand for a hearing on the 30.30 motion.