Gun conviction reversed on speedy trial grounds

The Appellate Division of state Supreme Court, Fourth Department, has reversed a weapon conviction on speedy trial grounds.

Defendant Abraham Shammah pleaded guilty before Seneca County Court Judge Barry L. Porsch in August 2023 to third-degree criminal possession of a weapon.

In a recent decision, the Fourth Department unanimously reversed the conviction and dismissed the indictment.

Shammah’s appellate attorney, David M. Abbatoy Jr., argued that Porsch should have granted a motion to dismiss the indictment on statutory speedy trial grounds.

The Fourth Department agreed.

When a defendant is charged with a felony, the prosecutor must announce readiness for trial within six months.

The relevant time period runs from the filing of the first accusatory instrument to the prosecutor’s declaration of readiness.

“Once a defendant has shown the existence of a delay greater than six months, the People bear the burden of proving that certain periods within that time should be excluded,” the court wrote.

Shammah was charged on April 26, 2021, and the prosecutor did not announce readiness for trial until May 25, 2022, a period of 394 days.

“We agree with defendant that the court erred in determining that the total time chargeable to the People was only 125 days,” the court wrote.

“We conclude that the People failed to meet their burden of establishing a basis to exclude … the s 125-day period from Jan. 20, 2022, the date on which the defendant purportedly asked the People to ‘hold off’ presenting the matter to the grand jury, until May 25, 2022, when the People announced readiness for trial,” the court wrote.

The prosecutor’s blanket assertion that all the delays in the case were at the request of the defendant “was not sufficient to demonstrate why they are not chargeable with that 125-day delay,” the Fourth Department wrote.

Because the time chargeable to the prosecution was more than six-months Shammah was denied his right to a speedy trial, the court wrote.

“The court thus erred in denying that part of defendant’s motion seeking to dismiss the indictment,” the court wrote.

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