People v. Scott Barden


People v. Scott Barden
AD1 order dated April 10, 2014, modifying judgment of conviction. Decision below: 117 AD3d 216, 983 NYS2d 534. Pigott, J., granted leave September 23, 2014. To be argued April 27, 2016 (reargument).
ISSUES PRESENTED: (1)Whether a defendant may be guilty of fourth-degree criminal possession of stolen property for possessing intangible property, i.e., a credit card number, where the rightful owner retains physical possession of the card. (2) CPL §30.30: When the prosecutor states they are not ready and asks for an adjournment, does defense counsel “consent” to the adjournment by proposing an alternate date. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)

Issues before the Court: CPL 30.30 - (1) “[W]ho is chargeable, for statutory speedy trial purposes, with each discrete time period within a pre-readiness adjournment when the People initially request an adjournment to a specific date, defense counsel is unavailable on that date and requests a later date, but the court is unavailable on the later date, resulting in an even longer adjournment?” (2)  [W]hether defense counsel consented to the additional delay occasioned by the court’s calendar when, upon being advised by the court of its next available date, counsel responded, ‘[t]hat should be fine.’”?


Held: (1) In the pre-readiness context, where the burden is on the People to show excludable time, mere accommodation to the People’s or the court’s requests for certain dates does not qualify as “consent” to the adjournment, and the time is all includable. (2) Counsel merely saying, “[t]hat should be fine,” is accommodation, not consent.


CAL Observes: Defense lawyers should be extremely careful in what they say to the People’s or the court’s requests for adjournment dates.  If you are unavailble on the suggested dates you can say so without evincing “consent” under 30.30.  But explanations of why you want more time for your convenience, schedule,  or the needs of defending the case, will constitute consent.  Say as little as possible.