Appeal from a judgment of the District Court of Suffolk County, First District (Stephen M. Behar, Sr., J., on motions; Toni A. Bean, J., on motion and at trial and sentencing), rendered June 13, 2006. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree and endangering the welfare of an incompetent person.

Judgment of conviction affirmed.

After the lower court dismissed as facially insufficient the information charging assault in the third degree (Penal Law § 120.00 [1]), the People filed a new information charging the same offense. Defendant asserts that this second information was also facially insufficient. Specifically, he argues that the information, together with its supporting depositions, failed to contain non-hearsay allegations establishing, if true, the element of physical injury. We disagree. The non-hearsay allegations that defendant punched the wheelchair-bound victim twice, forcefully enough to produce a "loud thud" each time, and forcefully enough to cause deep red coloration and subsequent bruising and swelling, established, if true, that the victim suffered substantial pain, and hence, physical injury (see People v Chiddick, 8 NY3d 445 [2007]).

Defendant also maintains that the information charging him with endangering the welfare of an incompetent person (Penal Law § 260.25) was defective. Again, we disagree. The supporting deposition contained non-hearsay allegations to the effect that the victim was wheelchair-bound, that he required substantial assistance in caring for himself, and that the defendant punched him forcefully two times. These allegations established, if true, that defendant "knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a person who is unable to care for himself or herself because of physical disability, mental disease, or defect" (Penal Law § 260.25). [*2]

We also reject defendant's contention that he was deprived of his statutory right to a speedy trial. We first address the assault charge. The People validly asserted their readiness on the original, non-jurisdictionally defective assault information (see People v Casey, 95 NY2d 354 [2000]; cf. People v Colon, 59 NY2d 921 [1983]). Contrary to defendant's contention, their subsequent delay in providing the defense with the victim's medical records was not chargeable to them, since the defense consented to this delay, and since it was in any event not chargeable time (see People v Anderson, 66 NY2d 529 [1985]). Time attributable to defense motions, including delay attributable to the defense dismissal motion, was also not chargeable to the People (see CPL 30.30 [4] [a]). When the appropriate periods are not charged to the People, the result is that the lower court was correct in denying the speedy trial motion.

There are two questions that we do not answer in the context of the instant case, because the periods of time related to these questions, even if combined, would not change our result. The first question is whether the People's assertion of readiness on the first, non-jurisdictionally defective information remained valid even upon dismissal of that information. We note that there are cases dealing with indictments that suggest that the People's assertion of readiness on the non-jurisdictionally defective accusatory instrument did, indeed, remain valid (see e.g. People v Terry, 225 AD2d 306 [1996]; People v Gutter, 222 AD2d 330 [1995]; People v Traficante, 143 AD2d 443 [1988]; People v Heller, 120 AD2d 612 [1986]; cf. People v Weaver, 34 AD3d 1047 [2006] [People's original assertion of readiness on subsequently superseded, jurisdictionally defective indictment was invalid]). We also note, however, that People v Alejandro (70 NY2d 133 [1987]) sheds doubt on the applicability of indictment cases to cases involving informations.

The second question that we do not answer is how to treat the time between the dismissal of the first information and the filing of the second. We find that the People were not ready during this period, since there was no accusatory instrument upon which they could proceed (see People v Cortes, 80 NY2d 201 [1992]). We do not decide, however, whether this time was excludable as attributable to the defense dismissal motion (see generally People v Cortes, 80 NY2d 201 [1992], supra; People v Worley, 66 NY2d 523 [1985] [holding that the motion practice exclusion of CPL 30.30 (4) (a) applied to a period during which the People were not ready because the case was proceeding under an unconverted misdemeanor complaint]; People v Weaver, 34 AD3d 1047 [2007], supra), or whether it was non-excludable (see generally People v Worley, 201 AD2d 520 [1994]; People v Bryant, 153 AD2d 636 [1989]).

As for the second speedy trial motion, contrary to defendant's contention, the People's delay in producing the minutes necessary for the court's determination of the first speedy trial motion was not chargeable time for statutory speedy trial purposes (see People v Lacey, 260 AD2d 309 [1999]); thus, the lower court was also correct in denying defendant's second speedy trial motion. With respect to the charge of endangering the welfare of an incompetent person, since the original (and only) information charging this offense was not defective, the People's declaration of readiness on the information remained continuously valid, and defendant was therefore clearly not denied his statutory right to a speedy trial on this charge.

Finally, the sentence imposed by the lower court was not excessive (see People v Mereness, 43 AD3d 473 [2007]). [*3]

McCabe, J.P., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: April 21, 2008