The People, Appellant,v.Dru Allard, Respondent.

Brief

N.Y.September 6, 2016

To be argued by APL-2015-00241 JOSHUA M. LEVINE (15 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Appellant, - against- DRU ALLARD, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT JOSHUA M. LEVINE Of Counsel June 10, 2016 LYNN W. L. FAHEY Attorney for Defendant-Respondent 111 John Street, 9th Floor New York, N.Y. 10038 Telephone: (212) 693-0085, ext. 212 Facsimile: (212) 693-0878 INDEX TABLE OF AUTHORITIES ................................... 111 PRELIMINARY STATEMENT .. .. .. .. . .. .. .. .. .. . . . . . . .. . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY QF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The Original Indictment. Pre-Trial Adjournments. the Dismissal of the Indictment. and the New Indictment . . . . . . . . . . . . . 9 The Initial Speedy Trial Proceedings ....................... 11 The C.P.L. § 30.30 Motion .......................... 11 The People's Response ............................. 12 The Decision and Order Summarily Denying the Motion .. 13 The Trial and Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 The People's Case ................................. 13 The Defense Case ................................. 14 The Verdict and Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 The Appellate Division Proceedings Before Remittal . . . . . . . . . . 16 The C.P.L. § 30.30 Hearing .............................. 19 Post-hearing Submissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 The Decision and Order Granting the Motion tp Dismiss . . . . . . . 24 The Appellate Division Proceedings After Remittal . . . . . . . . . . . 25 ARGUMENT THE PEOPLE'S PRESERVATION ARGUMENTS REGARDING THE APPELLATE DIVISION'S NON-FINAL, INTERMEDIATE ORDER REMANDING FOR A SPEEDY TRIAL HEARING ARE ACADEMIC AND NOT COGNIZA- BLE IN THIS APPEAL FROM THE COURT'S SUBSEQUENT ORDER DISMISSING THE INDICTMENT, AND THE APPEL- LATE DIVISION CORRECTLY HELD, IN ANY EVENT, THAT RESPONDENT WAS ENTITLED TO A HEARING ON HIS MOTION TO DISMISS THE INDICTMENTS PURSUANT TO C.P.L. § 30.30 ...................................... 28 CONCLUSIQN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 11 TABLE OF AUTHORITIES CASES People v. Allard, 113 A.D.3d 624 (2d Dep't 2014) ........... 18-19, 44 People v. Allard, 128 A.D.3d 1081 (2d Dep't 2015) ............. 28, 49 People v. Beasley, 16 N.Y.3d 289 (2011) ......................... 44 People v. Belgrave, 226 A.D.2d 550 (2d Dep't 1996) ............ 23-24 People v. Berkowitz, 50 N.Y.2d 333 (1980) ............. 4, 36-38, 41-42 People v. Carrasquillo, 54 N.Y.2d 248 (1981) .................. 34, 39 People v. Coppa, 45 N.Y.2d 244 (1978) .......................... 31 People v. Davis, 184 A.D.2d 575 (2d Dep't 1992) .................. 40 People v. Dunn, 4 N.Y.3d 495 (2005) ............................ 30 People v. Friscia, 73 A.D.2d 702 (3d Dep't 1979), aff'd, 51N.Y.2d845 (1980) ................................... 41 People v. Giordano, 81A.D.2d1003 (4th Dep't 1981), aff'd, 56 N.Y.2d 524 (1982) ................................... 41 People v. Goode, 87 N.Y.2d 1045 (1996) .................. 3-4, 36, 44 People v. Goodman, 46 A.D.2d 938 (3d Dep't 1974), aff'd, 41N.Y.2d888 (1977) ................................... 41 People v. Hameed, 88 N.Y.2d 232 (1996) ........................ 39 People v. Hammpud, 147 A.D.2d 416 (1st Dep't 1989) .............. 40 lll People v. Hampton, 21N.Y.3d277 (2013) ................... 5, 18, 44 People v. Hecker, 15 N.Y.3d 625 (2010) ......................... 33 People v. Hernandez, 98 N.Y.2d 8 (2002) ........................ 30 People v. Jackson, 80 N.Y.2d 112 (1992) ......................... 31 People v. Jones, 21 N.Y.3d 449 (2013) ....................... 34, 39 People v. Jones, 88 N.Y.2d 172 (1996) ....................... 39, 46 People v. Liang, 79 N.Y.2d 166 (1992) ....................... 30-31 People v. Lowery, 88 N.Y.2d 172 (1996) ......................... 39 People v. Luperon, 85 N.Y.2d 71 (1995) .............. 4, 12-13, 36, 44 People v. MacKenzie, 231 A.D.2d 740 (2d Dep't 1996) ............. 40 People v. Manescala, 138 A.D.2d 633 (2d Dep't 1988) .............. 40 People v. Mclaurin, 38 N.Y.2d 123 (1975) ....................... 42 People v. Nowakowski, 49 N.Y.2d 723 (1980) ............... 37-38, 42 People v. Parks, 72 A.D.2d 779 (2d Dep't 1979) ................... 40 People v. Pollenz, 67 N.Y.2d 264 (1986) ......................... 38 People v. Prado, 4 N.Y.3d 725 (2004) ........................... 44 People v. Reid, 102 A.D.2d 835 (2d Dep't 1984) ................... 40 People v. Rossi, 5 N.Y.2d 396 (1959) ............................ 30 People v. Santangello, 38 N.Y.2d 536 (1976) ..................... 31 lV People v. Santos, 68 N.Y.2d 859 (1986) .................... 36, 38, 41 People v. Schwartz, 54 A.D.2d 967 (2d Dep't 1976) ................ 40 People v. Singer, 44 N.Y.2d 241 (1978) .......................... 42 People v. Smith, 245 A.D.2d 534 (2d Dep't 1997) .................. 40 People v. Stevens, 91 N.Y.2d 270 (1998) ......................... 30 People v. St. Louis, 41A.D.3d897 (3d Dep't 2007) ................ 40 People v. Thomas, 200 A.D.2d 866 (3d Dep't 1994) ................ 41 People v. Tolentino, 71A.D.2d934 (2d Dep't 1979) ................ 40 People v. Vidal, 161A.D.2d313 {lst Dep't 1990) .................. 40 People v. Wilson, 207 A.D.2d 849 (2d Dep't 1994), ajf'd, 86 N.Y.2d 753 (1995) ................................... 41 People v. Wojciechowski, 132 A.D.2d 586 (2d Dep't 1987) .......... 40 People v. Zirpola, 57 N.Y.2d 706 (1982) ......................... 36 Church of Scientology of New York v. Tax Commission of the City of New York, 120 A.D.2d 376 {lst Dep't 1986) .................... 39 Hopkins v. Clark, 149 N.Y. 329 (1896) .......................... 39 Judson v. Central Vermont R. Co., 158 N.Y. 597 (1899) .......... 38-39 Matter of Park Knoll Associates v. New York State Division of Housing and Community Renewal, 80 A.D.2d 918 (2d Dep't 1981) ........... 39 Nicholson v. State Commission on Judicial Conduct, 67 A.D.2d 649 {lst Dep't 1979) ................................ 39 v State v. King, 36 N.Y.2d 59 (1975) ........................... 30-31 CONSTITUTIONAL PROVISIONS AND STATUTES N.Y. Const., Art 6, §§ 1, 2, 4(k) ................................ 38 C.P.L. § 30.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim C.P.L. § 210.20 ........................................ 3, 13, 35 C.P.L. § 210.45 ........................... 4-5, 18-19, 30, 35-36, 38 C.P.L. § 330.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 C.P.L. § 450.10 ............................................. 38 C.P.L. § 450.90 ........................................... 3, 31 C.P.L. § 470.05 ..................................... 5, 18, 44, 48 P.L. §§ 485.05[1](b)/120.14[1] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 OTHER AUTHORITY Preiser, Practice Commentaries to C.P.L. § 450.90 ................. 31 VI COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------){ THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, - against- DRU ALLARD, Defendant-Respondent. -------------------------------------------------------------){ PRELIMINARY STATEMENT This brief is submitted in response to the People's appeal from an order of the Appellate Division, Second Department, dated May 27, 2015, that reversed a judgment of the Supreme Court, Kings County, rendered on June 9, 2010, convicting the defendant, after a jury trial, of menacing in the second degree as a hate crime (P.L. §§ 485.05[l](b)/120.14[1]) (two counts), and dismissed the indictment. On September 3, 2015, Hon. Eugene M. Fahey granted leave to the People to appeal the Appellate Division's order to this Court. On October 15, 2015, this Court granted Mr. Allard poor person relief and assigned Lynn W. L. Fahey as counsel on this appeal. Mr. Allard is at liberty. QUESTION PRESENTED Are the People's preservation arguments regarding the Appellate Division's non-final, intermediate order remanding for a speedy trial hearing academic and not cognizable in this appeal from the court's subsequent order dismissing the indictment, and did the Appellate Division correctly hold, in any event, that respondent was entitled to a hearing on his motion to dismiss the indictments pursuant to C.P .L. § 30.30? (A) The People have appealed from the Appellate Division's May 27, 2015 order reversing Mr. Allard's conviction and dismissing the indictment on speedy trial grounds following a hearing at which the trial court similarly concluded that the motion to dismiss should be granted. Making no argument on the merits, the People contend that Mr. Allard's original C.P.L. § 30.30 motion was erroneously found to have preserved his speedy trial argument that the 32-day adjournment during which the complainant was abroad was not excludable due to a failure of due diligence by the prosecutor to secure his presence at the grand jury. That argument is not cognizable before this Court for two reasons. First, the Appellate Division's determination that this 2 argument was preserved was made in a non-final, interim order by that court on January 8, 2014, granting a hearing, and the People have no right to appeal to this Court from that order now, any more than they had a right to appeal from it to this Court then. See C.P.L. § 450.90. Now that the hearing the Appellate Division has been held, the appeal to this Court is limited to the outcome of the hearing. The People's preservation argument is also academic because, prior to the Appellate Division's determination of the merits of the speedy trial claim, the hearing in this case was held and the record was fully developed. Once a hearing has been ordered, testimony taken, and a ruling made, whether the hearing was properly ordered is irrelevant. The record having been developed, the question becomes whether the ultimate ruling was correct, not whether the court should not have been given an opportunity to make its ruling. (B) Criminal Procedure Law§§ 210.20(g) and 30.30[1](a) provide that a defendant may move to dismiss an indictment on the ground that he has been denied the statutory right to a speedy trial. In moving to dismiss an indictment for a 30.30 violation, a defendant must allege that the People have not been ready for trial within six months of the commencement of the action. People 3 v. Goode, 87N.Y.2d 1045, 1047 (1996);Peoplev. Luperon, 85 N.Y.2d 71, 77- 78 (1995);Peoplev. Berkowitz, 50N.Y.2d333, 349 (1980). In opposition, the People may file an answer admitting or denying the allegations, and may "further submit documentary evidence refuting or tending to refute such allegations." See C.P.L. § 210.45[2]. The court must determine whether the motion can be decided without a hearing to resolve any questions of fact. See C.P.L. § 210.45[3]. It may deny the motion without a hearing only if the People have met their burden of "conclusively refut[ing]'' the defense allegations by"unquestionabledocumentaryproof." SeeC.P.L. § 210.45[5](c). If the court does not dismiss the motion based on such "unquestionable documentary proof," it "must conduct a hearing and make findings of fact essential to the determination thereof." See C.P.L. § 210.45[6]. As the People concede, Mr. Allard met his initial burden in this case. When the burden then shifted to the People, however, they made only a conclusory assertion, with no independent factual support, that their witness was unavailable and beyond their control because he was on vacation in Egypt during a 32-day period that was dispositive as to the speedy trial claim. The trial court summarily denied the motion, ruling that"[ t ]he [P]eople contend and the defense does not dispute that the complaining witness was in Egypt [during 4 the 32-day period] and beyond the control of the [P]eople." Although the trial court found that the People had satisfied their burden of proof merely by alleging the complainant's absence from the country, the Appellate Division held otherwise and remitted the case to the Supreme Court for the full evidentiary hearing that court should have conducted in the first instance. See C.P.L. § 210.45[6]. Denying the defense motion because Mr. Allard "d[id] not dispute" the People's contention as to the complainant's unavailability was impermissibleandcontrarytoC.P.L. § 210.45[5]. Mr.Allard was not required to dispute the People's contention at this point because they had failed to carry their burden to conclusively refute the defense allegations with "unquestionable documentary proof." By ordering a hearing, the Appellate Division merely did that which the motion court was required, but had failed, to do. Mr. Allard's claim was also preserved because the court specifically found that the 32-day period was excludable based on the People's explanation. The court thus expressly acknowledged the issue concerning the complainant's availability and decided that issue in response to a protest by the defense, preserving the claim for appellate review. See C.P.L. § 470.05[2]; Peoplev. Hampton,21 N.Y.3d277,284n.2 (2013);Peoplev. Prado, 4N.Y.3d 5 725 (2004). The Appellate Division's preservation ruling fit comfortably within the statute, as well as this Court's precedent, on preservation. STATEMENT OF FACTS Introduction Respondent Dru Allard was arrested on September 10, 2006, and indicted for menacing in the second degree as a hate crime and other charges based on allegations that, while near a mosque on Atlantic A venue in Brooklyn, he brandished a knife at a Muslim man and directed an ethnic slur at him. On May 31, 2007, the court dismissed all the felony charges and all but one misdemeanor charge in the indictment and granted leave to the People to re-present the case to a new grand jury. More than three months later, on September 5, 2007, they obtained a new indictment. Before trial, defense counsel moved to dismiss the indictments on the ground that the People had violated C.P.L. § 30.30 by taking more than six months to bring the case to trial. Counsel argued that the absence of a valid indictment on the felony counts between the dismissal of the counts in the original indictment and the filing of the second indictment directly impaired the People's ability to proceed to trial and that the entire period of adjournment 6 was therefore chargeable to them. He asked for an evidentiary hearing if the court did not dismiss the indictments on the papers. The People responded, inter alia, that the 32-day period from July 27, 2007, to August 28, 2007, was not chargeable to them because the complainant was unavailable to appear before the grand jury since he was on vacation in Egypt during that period and therefore beyond their control. They contended that his unavailability in this regard constituted an excludable exceptional circumstance pursuant to C.P.L. § 30.30[4](g). The court summarily denied the motion. It held, inter alia, that "[t]he [P]eople contend and the defense does not dispute that the complaining witness was in Egypt between July 27 and August 28 and beyond the control of the [P]eople." That 32-day period of adjournment was dispositive in this case because the court charged the People with 168 days of delay relating to other adjournments, and the People had 181 days in which to bring the case to trial. On appeal to the Appellate Division, Second Department, Mr. Allard argued that the trial court erred when it refused to charge the People for the period during which the complainant was on vacation, and that the total chargeable adjournments exceeded the People's six-month statutory readiness period. See C.P.L. § 30.30[l](a). In their response, the People argued that Mr. 7 Allard had not preserved this claim because he did not specifically refer in his motion to the 32-day period, file a reply in which he argued that the People's explanation about the period was insufficient, or move to reargue his motion. Finding that Mr. Allard's claim that the summary denial of his motion was error was preserved for appellate review, the Appellate Division, in a decision and order dated January 8, 2014 (the "2014 order"), held the appeal in abeyance and remitted the matter to the Supreme Court, Kings County, "to hear and report" on Mr. Allard's motion. Specifically, it found that Mr. Allard had sustained his initial burden on the motion, but that the People had failed to conclusively demonstrate with "unquestionable documentary proof' that they had satisfied their requirement of proving that the 32-day period should be excluded from the statutorily prescribed period to bring the case to trial. The motion court, after presiding over a hearing, found that the People had failed in their burden of proving that the 32-day period of delay was excludable and dismissed the indictment. The Appellate Division, in a decision and order dated May 27, 2015 (the "2015 order"), then granted the C.P.L. § 30.30 motion and dismissed the indictment, holding that the People had failed to demonstrate that the 32-day period must be excluded from the time charged to them on the ground of exceptional circumstances because they 8 failed to show that they attempted with due diligence to make the complainant available to testify before the grand jury. On this appeal, the People ostensibly challenge the Appellate Division's 2015 order, but they make no argument whatsoever about it. Rather, they assert only that the Appellate Division's non-final 2014 order granting a hearing was error because, they claim, Mr. Allard's initial claim that the disputed period was chargeable to the People was unpreserved. The Original Indictment. Pre-Trial Adjournments. the Dismissal of the Indict- ment. and the New Indictment Mr. Allard was arrested on September 10, 2006, and arraigned on a felony complaint on September 11, 2006, charging him with menacing in the second degree as a hate crime, criminal possession of a weapon in the fourth degree, and other related misdemeanor offenses (A. 15, 18, 24, 33, 41).1 A grand jury indicted Mr. Allard and the People served and filed a statement of readiness on November 27, 2006 (A. 15, 20, 24, 33, 41). 1Numbers in parentheses preceded by" A." refer to pages of the People's Appendix; those preceded by "R." refer to pages of the Respondent's Appen- dix, which contains the transcripts of the pre-trial proceedings between April 4, 2007, and October 24, 2007. 9 On May 31, 2007, the court dismissed all but one of the counts in the indictment based on duplicitousness, leaving only criminal possession of a weapon in the fourth degree, and granted leave to the People to re-present charges to a new grand jury (R. 22-23). On June 18, 2007, the People requested a 30-day adjournment to re-present the matter to a new grand jury, and the court adjourned to July 25, 2007 (R. 25-26). Defense counsel was unavailable on July 25, 2007, and contacted the court to request a short adjournment. The prosecutor said the People would be re-presenting the case to a new grand jury, but not before the week of August 27 (R. 27). He did not say why the People needed that much time. The court reminded the prosecutor that speedy trial time was "ticking away," and that a new indictment would relate back to the original indictment (R. 28). The court adjourned for one day (R. 28-29). On July 26, 2007, Mr. Allard withdrew his C.P .L. § 190.50 notice to testify before the grand jury (R. 31-32). The court acknowledged the People's previous indication that they would need another month to re-present the matter to a new grand jury (R. 31 ), and adjourned the case to September 7, 10 2007 (R. 32-33).2 In the meantime, on September 5, 2007, a second grand jury indicted Mr. Allard, and the People served and filed a statement of readiness on the new indictment (A. 15, 18, 29). On September 7, 2007, the People announced they were ready on the new indictment and Mr. Allard was arraigned on it. The court again reminded the People that the time chargeable on the new indictment related back to the original indictment (A. 29; R. 35, 37). The Initial Speedy Trial Proceedings The C.P.L. § 30.30 Motion Defense counsel moved to dismiss the indictments pursuant to C.P.L. § 30.30 in a motion dated November 11, 2008, arguing that the People had exceeded the six months ( 181 days) allotted to them under the statute to bring the case to trial (A. 13, 16, 18-19, 22). In addition to arguing that the People were chargeable for several other adjournments (A. 15, 20), counsel argued that the People were chargeable for the period from May 31, 2007, the date on 20n July 26, 2007, defense counsel submitted an affirmation to the court in which he noted that the People had asked for a one-month adjournment and indicated that Mr. Allard would not be testifying before the grand jury. Counsel stated that, inasmuch as there were "no outstanding issues" and no appearance by him would be necessary, he requested a month's adjournment to attend to an unrelated matter in New Jersey (R. 31-32; A. 8). 11 which the court dismissed the felony and other counts in the original indictment, until September 5, 2007, the date they filed a statement of readiness on a new indictment, because the absence of a valid indictment during this period directly impaired the People's ability to proceed to trial (A. 15, 19-20). Counsel asked that the court summarily grant his motion or, in the alternative, that it hold a hearing "to determine the facts" (A. 22). The People's Response The People opposed the motion in an affirmation and memorandum dated December 10, 2008. As to the 32-day period from July 27, 2007, to August 28, 2007, the People asserted, for the first time, that they were not chargeable because the complainant was beyond their control on vacation in Egypt during that period and his unavailability to appear before the grand jury constituted an excludable exceptional circumstance pursuant to C.P.L. § 30.30[4](g) (A. 23-24, 28-29, 35-37). The People conceded that they were chargeable with at least 142 days, and as many as 168 days, of delay in other adjournment periods (A. 24-29, 33-34, 37, 40).3 3In arriving at these totals, appellate counsel has disregarded arithmetic errors by the People in favor of an independent calculation of the days between adjournments as to which the People conceded they were chargeable. See People v. Luperon, 85 N.Y.2d 71, 82 (1995) (court will disregard arithmetic (continued ... ) 12 The Decision and Order Summarily Denying the Motion Without ordering a hearing, the court denied Mr. Allard's motion to dismiss the indictments pursuant to C.P.L. §§ 210.20(g) and 30.30[1](a) in a decision and order dated December 19, 2008 (A. 41-43). It did not charge the People with the 32-day period of adjournment at issue, stating that "[t]he [P]eople contend and the defense does not dispute that the complaining witness was in Egypt between July 27 and August 28 and beyond the control of the [P]eople" (A. 42). It ruled that the People were chargeable with 168 days of delay from other adjournment periods (A. 41-43). The Trial and Sentence The People's Case At approximately 4:25 p.m. on Sunday, September 10, 2006, Hizam Wahib parked his car in front of a mosque on Atlantic A venue between Third andFourthAvenues in Brooklyn (A. 49, 53-54, 98, 103-104). As he exited his car, he saw Mr. Allard approximately 10 feet away "yelling" racial epithets at several people dressed in "Islamic clothing" (A. 56-60, 94, 98, 138-139). 3 ( ••• continued) errors where periods of delay in question are clearly and correctly identified in motion papers). 13 When Wahib confronted him, Mr. Allard pulled out a knife, and came toward him (A. 62-64, 108-109, 115, 123, 145, 167-168, 179). Wahib stepped back and called 911 on his cell phone, and Mr. Allard put the knife away and walked away (A. 64-65). When Wahib followed him and called 911 a second time to report his location (A. 65-67, 86), Mr. Allard turned around and approached him again with the knife, repeated the slur to him, and said that this was not his country and that the American police were going to come and arrest him, not Mr. Allard, because he, Wahib, was the criminal (A. 66-67, 86-87, 142-143, 157, 160-162). Sergeant Pierre Hyppolite received a radio report of a white man in a cowboy hat and armed with a knife walking on Fourth and Atlantic A venues in Brooklyn (A. 209-210, 232). After canvassing the area, Hyppolite saw Mr. Allard, who fit the description, and he and other officers stopped him Allard and recovered a folding knife from his back pocket (A. 210-213, 226, 236-23 7, 243). Shortly afterward, Wahib identified Mr. Allard (Wahib: A. 89; Hyppolite: A. 214-215, 217). The Defense Case Forty-six-year-old respondent Dru Allard, who was married with two children, had earned Bachelors, Masters, and Law degrees (A. 398-399, 414, 14 446-44 7). He had passed the New York State Bar Examination but was not practicing law (A. 398, 446). Mr. Allard was employed at the Kensington Stables in Brooklyn's Prospect Park, teaching horseback riding and leading trail rides (A. 402, 4 71 ). He had worked there on the morning of the incident, and had his knife in a sheath on his belt; he explained that a knife came in handy to cut a horse loose ifit got tangled in twigs or a piece of fishing line (A. 399, 401-403, 438, 470). After work he went to a bar at Atlantic and Third A venues, where he had some beer and tequila (A. 413-415). When Mr. Allard left the bar, a man who was selling water on the street near a mosque yelled at him to "get out of here" or words to that effect (A. 416-418, 455-456). A dispute ensued during which Mr. Allard cursed at Wahib and two other men who had joined him; they blocked his way as he tried to leave, and Wahib placed a cell phone call, saying that "[a] crime [was] about to be committed" (A. 412, 418, 424-431, 460-461, 463, 465-467, 469). Mr. Allard walked away but saw that Wahib had continued to follow him and was on his phone again (A. 431-433, 476). Mr. Allard, who admitted he was "drunk and stupid" at the time, walked toward Wahib and said, "you're calling the cops, let's wait for them, let's wait for them to come here to save your 15 Islamic fucking Muslim ass" (A. 433-434, 443-444, 450-452). Mr. Allard then walked away again, until he was stopped by police (A. 436). At no point had he taken the knife out of its sheath or pointed it at or threatened anyone with it (A. 400, 428, 439). The Verdict and Sentence The jury acquitted Mr. Allard of two counts of aggravated harassment in the second degree and convicted him of two counts of menacing in the second degree as a hate crime (A. 483-484). The court sentenced him to a 5- year term of probation (A. 489). The Appellate Division Proceedings Before Remittal Mr. Allard appealed his conviction to the Appellate Division, Second Department. In Point I of his briefhe argued that the trial court had erred when it refused to charge the People for the period during which the complainant was on vacation, and that the total chargeable adjournments exceeded the six months allotted to the People by C.P.L. § 30.30[1](a). He noted that, in filing a motion to dismiss an indictment for a C.P.L. § 30.30 violation, a defendant has only the initial burden of alleging that the People were not ready for trial within six months of the commencement of the action. Once the defendant has made that allegation, as Mr. Allard did in this case, the burden of proving that 16 certain adjournments within that time should be excluded falls upon the People, who failed to demonstrate here that they were chargeable with no more than six months of adjournments. Mr. Allard also argued that he had preserved his argument by contending that, from the date the court dismissed the counts of the original indictment until the People filed a statement of readiness on the second indictment, the absence of a valid accusatory instrument directly impaired their ability to proceed, and that period was therefore chargeable to them. He further argued, inter alia, that, because the People had not demonstrated due diligence in attempting to bring the complainant before a new grand jury before he left on vacation, they could not rely on the C.P.L. § 30.30[4](g) exceptional circumstances exception, and that the court erred in failing to charge the People for the period during which the complainant was on vacation. In their brief, the People did not dispute that Mr. Allard had met his initial burden of alleging that they were not ready for trial within six months and that the burden of proving that the 32-day period at issue thus fell upon them, or argue that Mr. Allard was not entitled to a hearing on his C.P .L. § 30.30 motion. Disregarding the court's specific ruling in its decision and order as to the 32-day period in particular, and making no argument as to the 17 merits ofMr. Allard's claim, they argued that Mr. Allard had not preserved his C.P.L. § 30.30 claim because he had not specifically referred in his motion to the 32-day period, filed a reply in which he argued that the People's explanation about the period was insufficient, or moved to reargue his motion. In a decision and order dated January 8, 2014, the Appellate Division held the appeal in abeyance and remitted the matter to the Supreme Court, Kings County, "to hear and report" on Mr. Allard's C.P.L. § 30.30 motion. "Contrary to the People's contention," the court held, "[Mr. Allard's] claim that the summary denial [of his motion] was error is properly preserved for appellate review." See People v. Allard, 113 A.D.3d 624, 625 (citing C.P.L. § 470.05[2]; People v. Hampton, 21 N.Y.3d 277 [2013]; People v. Prado, 4 N.Y.3d 725 [2004]). The court found that Mr. Allard had "sustained his initial burden on the motion by alleging that a period of unexcused delay in excess of six months had elapsed since the date that he was arraigned on the felony complaint" (citing C.P.L. § 30.30[1][a]), and that the People had "failed to conclusively demonstrate with 'unquestionable documentary proof that they satisfied that requirement." 113 A.D.3d at 625-626 (quoting C.P.L. § 210.45[5]; other citations omitted). Accordingly, the court stated, "the matter must be remitted ... for a hearing on [Mr. Allard's] motion." Id. (citing 18 C.P.L. § 210.45[5]; other citations omitted). The court "decide[d] no other issues at this juncture." 113 A.D.3d at 626.4 The C.P.L. § 30.30 Hearing On April 25, 2014, in accordance with the Appellate Division's decision and order, the Supreme Court, Kings County, conducted a hearing on Mr. Allard's motion to dismiss the indictments pursuant to C.P.L. § 30.30. The People called two witnesses: the complainant, Hizam Wahib, and former Assistant District Attorney Benjamin Lieberman. The defense did not call any witnesses. The hearing testimony established that, in late July of2007, Wahib went on vacation to visit family in Yemen (A. 498-499). He had planned his trip and bought his airline ticket some months prior to his departure date, when it was still winter (A. 502, 505-506). He left New York for Yemen on July 26, 2007, returned to the United States on August 16, 2007, then visited family 4Mr. Allard had also argued that the hearing court should have granted his suppression motion because police seized him without reasonable suspicion (Point II), and argued that he was denied a fair trial when the prosecutor elicited the contents of the complainant's post-arrest statement to police that he had used racial epithets (Point III). 19 members in Florida and North Carolina until his return to New York on August 26, 2007 (A. 498-499, 501, 509-511, 526-527). There were multiple prosecutors assigned to this case at different points in the prosecution (Wahib: A. 507; Lieberman: A. 536). Lieberman was assigned in late June or early July of 2007, after the May 31, 2007, dismissal of counts in the original indictment (Lieberman: A. 535-537, 547, 556, 588). At some point afterward, it was determined within his office that the case would be presented to a new grand jury (A. 535-536, 538-540). Once that decision was made, Lieberman contacted Wahib and the police officers involved in the case (Lieberman: A. 540). Lieberman telephoned W ahib once or twice between the date of his assignment to the case and July 25, 2007 (Wahib: A. 504, 508-509, 514-516, 529-531; Lieberman: A. 541-542, 549-550, 568). Lieberman told Wahib that the indictment, or some of its charges, had been dismissed and that he would be needed to testify before another grand jury (Wahib: A. 512). Wahib replied that he would be leaving for his planned annual vacation at the end of July and returning four weeks later (Wahib: A. 503-504, 509, 517-518; Lieberman: A. 543-544, 550, 557, 561). Lieberman asked him whether it was "possible" for him to change his vacation plans and stay for the new grand jury presentation; 20 Wahib said it was not (Wahib: A. 517; Lieberman: A. 550, 561). Taking W ahib' s response at "face value" and presuming that he would not be available for some time, Lieberman made no effort to try to convince him to stay (Wahib: A. 517; Lieberman: A. 550, 556, 560-561). He asked Wahib to contact him when he got home from vacation (Wahib: A. 505). Other than Lieberman asking Wahib about the possibility of changing his plans, neither he nor any other prosecutor asked Wahib to postpone his trip or offered to pay for any expenses he might incur as a result (W ahib: A. 518; Lieberman: A. 560). Lieberman acknowledged that he engaged in no "vigorous activity" to keep W ahib from leaving or to make himself available to appear before a new grand jury prior to his vacation (A. 561 ). No other prosecutor or member of law enforcement contacted Wahib between the May 31, 2007, dismissal of the indictment counts, and Lieberman's first telephone call to Wahib (Wahib: A. 519-521; Lieberman: A. 551-552). Nothing in the District Attorney's case file indicated any effort by another prosecutor to present the case to a new grand jury between May 31 and September 5, 2007, or to bring Wahib into the District Attorney's office during that period (A. 571-572). Nor did any member of law enforcement or the District Attorney's office contact Wahib while he was on vacation, either while 21 he was in Yemen or after he returned to the United States (Wahib: A. 521, 530; Lieberman: A. 571). Wahib had been cooperative with the prosecution from the inception of the case, and continued to be so after Lieberman was assigned to it (Wahib: A. 524; Lieberman: A. 600-601, 607). There was no reason Wahib could not have appeared before a new grand jury prior to his vacation, except he was not asked to do so; had he been asked, he would have appeared and testified (Wahib: A. 508, 523-524, 527). Upon arriving home after his vacation, he found no communications awaiting him from the District Attorney's office (Wahib: A. 511, 521-522). On June 18, 2007, before Lieberman was assigned to the case, another assistant district attorney told the court that the People would be re-presenting the case to a new grand jury within 30 days (A. 589-591).5 After being assigned to the case, Lieberman appeared before the trial court on July 25 and 26, 2007. He informed the court that he would be presenting the case to a new grand jury, but not before the week of August 27th (A. 542-544, 566-567, 599, 605-606). He did not mention that the complainant was unavailable or that 5Lieberman read from the calendar minutes of June 18, 2007, which were received in evidence as Defense Exhibit D (A. 589). 22 there was any impediment to presenting the case to a new grand jury (A. 566- 567' 598-599). On September 5, 2007, more than a week after Wahib's return to New York, Lieberman presented the case to the second grand jury (Wahib: A. 511; Lieberman: A. 552-553). Post-hearing Submissions In an affirmation and memorandum dated May 27, 2013, the prosecutor argued that Lieberman's contacting the complainant prior to the complainant's planned vacation constituted the due diligence required for the People to invoke the "exceptional circumstances" exception of C.P .L. § 30.30[ 4 ](g). The prosecutor analogized the circumstances in this case to those in People v. Belgrave, 226 A.D.2d 550 (2d Dep't 1996), in which the court ruled that two of the People's witnesses unexpectedly leaving the country just before a scheduled grand jury proceeding constituted an exceptional circumstance within the meaning ofC.P.L. § 30.30[4](g), and that "the prosecutor's conduct in attempting to secure their attendance satisfied the due diligence requirement of the statute." 226 A.D.2d at 550 (A. 619-620). In an affirmation and memorandum dated June 23, 2014, Mr. Allard's counsel argued that Lieberman's single, belated query to the complainant 23 whether it was "possible" for him to change his vacation plans did not constitute the due diligence required to invoke the "exceptional circumstances" exception of C.P.L. § 30.30[4](g) (A. 629-630, 633-635). Counsel also distinguished Belgrave on the facts, noting that here, in contrast, the complainant's departure from the country was not unexpected - he had planned his trip months in advance - and there was no scheduled grand jury proceeding. Moreover, counsel noted, the People had nearly two months before the complainant's departure to present the case to a new grand jury, and should not be heard to complain that they did not expect his departure, since they failed to attempt to contact him until Lieberman did so on the eve of his already long-planned departure. Even then, Lieberman did not ask him to delay his trip to appear before the grand jury, asking only whether it was "possible" (A. 636). The Decision and Order Granting the Motion to Dismiss In a decision and order dated August 20, 2014, the hearing court found that "[t]here was no effort made by anyone in the [District Attorney's] office to convince the complainant not to go abroad," and that Lieberman's telephone contact with the complainant "fl ell] short of satisfying the People's burden of establishing" that the 32-day period of delay at issue was excludable time. 24 This chargeable 32-day period, combined with other chargeable adjournments the People conceded, totaled 200 days, exceeding their six-month allotment of time under the speedy trial statute and requiring that the indictment be dismissed (A. 640-642). The Appellate Division Proceedings After Remittal Mr. Allard argued in a supplemental briefthat the hearing court correctly determined that the People had failed to exercise due diligence to procure the complainant's presence before a new grand jury following the dismissal of counts in the original indictment, and that, as a result, there were no "exceptional circumstances" excusing the 32-day period of adjournment at issue. When that period was added to other adjournments the People conceded were chargeable to them, the total delay was 200 days, which exceeded the six- month period in which they were required to bring the case to trial, mandating dismissal of the indictment. In their supplemental brief, the People reiterated their argument that Mr. Allard's C.P.L. § 30.30 claim was unpreserved in the first instance, prior to the hearing. They also argued, in the alternative, that they proved at the hearing that they exercised due diligence in attempting to bring the complainant before 25 a new grand jury by showing that they had asked him about his travel plans, which he said he could not change. Mr. Allard argued in a supplemental reply brief that the People's due diligence claim, based on the prosecutor's single inquiry of the complainant shortly before his departure as to whether he could change his travel plans, was meritless because it disregarded the critical fact that they were obligated to become aware of his travel plans well in advance of his departure, and they made no attempt to secure his presence before a new grand jury prior to his vacation. Mr. Allard also noted that the People were merely reiterating a preservation argument that the Appellate Division had already rejected. The repeated argument was, moreover, not based on any facts elicited at, or arguments made pursuant to, the hearing on remittal, the sole basis for the supplemental briefing. The People submitted a second supplemental brief in which they set forth a new, concededly unpreserved claim, that the period at issue was excludable because, on July 26, 2007, after the People had stated they would not be presenting the case to a new grand jury for a month, defense counsel submitted an affirmation of actual engagement in an unrelated case and requested a one-month adjournment. They argued that, since the Appellate 26 Division had considered Mr. Allard's allegedly unpreserved claim, it should consider the People's, as well. In a second supplemental reply brief, Mr. Allard argued that it was inexcusable for the People not to have preserved their new claim, and challenged their suggestion that the Appellate Division had reached an unpreserved claim by him rather than having ruled that the initial claim on appeal was preserved for appellate review. Finally, Mr. Allard noted that the facts and argument in his claim had now been "fully vetted at the hearing" and in written submissions to the hearing court. In a decision and order dated May 27, 2015, the Appellate Division reversed Mr. Allard's conviction, on the law, granted his C.P.L. § 30.30 motion, and dismissed the indictment. Noting that the Supreme Court had originally determined that the People were chargeable with 168 days of pre- trial delay, the Appellate Division held: At the hearing on remittitur concerning the period from July 27, 2007, through August 28, 2007, the People failed to demonstrate that the 32-day period must be excluded from the time charged to them on the ground of exceptional circumstances inasmuch as they failed to show that they attempted with due diligence to make the complainant available. 27 People v. Allard, 128 A.D.3d 1081 (2d Dep't 2015) (citations, internal quotation marks, and brackets omitted). It also held that the People's alternative claim (as to the affirmation of actual engagement) was unpreserved and that, contrary to their contention, it was not an argument that could not have been countered by the defense had it been raised in the trial court. Id. at 1082. It did not address the People's renewed argument that Mr. Allard's claim was unpreserved. In light of its determination, it did not reach Mr. Allard's remaining claims. Id. ARGUMENT THEPEOPLE'SPRESERVATIONARGUMENTS REGARDING THE APPELLATE DIVISION'S NON-FINAL, INTERMEDIATE ORDER REMANDINGFORASPEEDYTRIALHEARING ARE ACADEMIC AND NOT COGNIZABLE IN THIS APPEAL FROM THE COURT'S SUBSEQUENT ORDER DISMISSING THE INDICTMENT, AND THE APPELLATE DIVI- SION CORRECTLY HELD, IN ANY EVENT, THAT RESPONDENT WAS ENTITLED TO A HEARING ON HIS MOTION TO DISMISS THE INDICTMENTS PURSUANT TO C.P.L. § 30.30. The People are appealing to this Court from the Appellate Division's May 27, 2015, order reversing Mr. Allard's conviction and dismissing the indictment. But they make no complaint whatsoever about that order, either 28 as to preservation or merits of the C.P.L. § 30.30 issue. Rather, their entire argument is that the Appellate Division's January 8, 2014, order remitting for a hearing was error. The 2014 order, however, is not appealable because the Criminal Procedure Law grants the People no avenue of appeal to this Court from such interlocutory order. The People's arguments about the 2014 order are, therefore, academic, and are not cognizable on this appeal from the 2015 order. Those arguments are, in any event, without merit. The People claim that Mr. Allard failed to preserve his argument for appellate review because, after they claimed that the 32-day period during which the complainant was on vacation in Egypt was not chargeable because his unavailability constituted an excludable exceptional circumstance pursuant to C.P .L. § 30.30[ 4](g), defense counsel did not file a reply challenging their unsubstantiated explanation and the court did not expressly determine whether the People had exercised due diligence, rendering the defense challenge to that explanation unpreserved. But when defense counsel filed a motion to dismiss the indictments pursuant to C.P.L. § 30.30 and specifically argued that the lack of an indictment impaired the People's ability to proceed, he sustained his initial burden of alleging that the People had taken more than six months to bring the 29 case to trial. Since the People did not "conclusively refute" the defense contentions with "unquestionable documentary proof," see C.P .L. § 210.45 [ 5], the court was without authority to deny the motion without a hearing. The Appellate Division therefore properly remitted the matter, on the law, to the trial court for that purpose. Once the hearing concluded, Mr. Allard made arguments on the newly-developed facts, after which the Appellate Division properly ruled on the merits of the claim. This Court should, accordingly, affirm the Appellate Division's 2015 order reversing the conviction and dismissing the indictment. (A) The People's entire argument about the Appellate Division's 2014 order is academic and not cognizable on this appeal from the court's 2015 order. It is settled law that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by the Criminal Procedure Law. People v. Dunn, 4 N.Y.3d 495, 497 (2005); People v. Hernandez, 98 N.Y.2d 8, 10 (2002); People v. Stevens, 91N.Y.2d270, 277 (1998); People v. Liang, 79 N.Y.2d 166, 170 (1992); State v. King, 36 N.Y.2d 59, 63 (1975). Statutes providing a right to appeal in criminal cases must, moreover, be strictly construed. People v. Rossi, 5 N.Y.2d 396, 400 (1959). The underlying policy 30 is to limit undue proliferation of appellate claims in criminal matters and ensure that a trial is not interrupted by interlocutory appeals. Liang, 79 N.Y.2d at 170; People v. Coppa, 45 N.Y.2d 244, 249 (1978); People v. Santangello, 38 N.Y.2d 536, 538 (1976); King, 36 N.Y.2d at 63. These rules will sometimes operate to the detriment of a defendant, and sometimes to the People. King, 36 N.Y.2d at 63. In general, the People's right to appeal from a pretrial order in a criminal case is limited to orders that terminate the prosecution or have the same practical effect. Coppa, 45 N.Y.2d at 249. The People's right to appeal to this Court is governed by C.P.L. § 450.90. That statute requires that, to bring an appeal, the order appealed from must be adverse or partially adverse to the party appealing. See C.P.L. § 450.90[1]; People v. Jackson, 80 N.Y.2d 112, 114 ( 1992). An order of the Appellate Division is adverse to the People "when it reverses the judgment, sentence, or order appealed from." Jackson, 80 N.Y.2d at 114 n.2. See also Preiser, Practice Commentaries to C.P.L. § 450.90 (the order "must be an affirmance or reversal of the judgment, sentence[,] or order appealed from"). Given these settled principles, it is beyond question that the Appellate Division's 2014 non-final, intermediate order remitting for a fact-finding 31 hearing on Mr. Allard's 30.30 motion is not appealable by the People. While the People are ostensibly appealing from the Appellate Division's 2015 order reversing Mr. Allard's conviction and dismissing the indictment (see People's Brief at 1 ), they make no argument whatsoever in their brief about that order and its ruling on the merits of the speedy trial motion. Rather, they are effectively challenging a non-final order from which they have to right to appeal by exclusively arguing to this Court that the Appellate Division's 2014 order remitting for a 30.30 hearing was error. Because there is no avenue under the Criminal Procedure Law for the People to appeal the 2014 order remitting for a speedy trial hearing, their arguments about it are entirely academic, unreviewable, and are not cognizable on this appeal from the 2015 order. The People's argument that defense counsel failed to preserve a challenge to their claim that the 32-day vacation period was excludable is academic for another reason, as well, namely, that the hearing was held and the record concerning that period is now fully developed. The People have cited no authority for the proposition that the Appellate Division was required to tum a blind eye to the clear evidence that was developed at the hearing of the People's failure to exercise due diligence to secure Hizam Wahib's presence 32 in the grand jury. It is a universally accepted practice in the New York courts that, once a hearing has been ordered, testimony taken, and a ruling made, whether the hearing was properly ordered is irrelevant. The record having been developed, the question becomes whether the ultimate ruling was correct, not whether the court should not have been given an opportunity to make its ruling. Determination of the merits of the motion voids challenge to the grant of the hearing in much the same way a party's assertion of race-neutral reasons for striking a prospective juror moots any issue of the sufficiency of a prima facie showing of race discrimination during jury selection in the first place. See People v. Hecker, 15 N.Y.3d 625, 652 (2010). The posture here is also analogous to the suppression context. When a defendant moves to suppress evidence, the court is initially called upon to determine whether he has alleged sufficient facts for a hearing. If a hearing is granted, it is conducted and the parties litigate the merits of the arguments on the basis of the evidence developed at the hearing. The People cannot be heard to complain that the hearing evidence should be ignored on appeal because the court's decision to grant a hearing was incorrect. Research discloses not a single case in which any of the Appellate Divisions have disregarded the evidence developed at a suppression hearing ordered by a court because the 33 court's determination that the defendant had made a sufficient factual showing of entitlement to a hearing was incorrect. Similarly, if a hearing court incorrectly denies a defendant's motion for a suppression hearing, his remedy, ifhe is convicted, is to make that argument on appeal. If the Appellate Division agrees that the court wrongly denied a hearing, it holds the appeal in abeyance and remits the case for a suppression hearing. Once the hearing is conducted and the hearing court makes its report on the merits of the defendant's arguments for suppression, the Appellate Division decides whether suppression should have been granted. It is then the Appellate Division's determination of the merits of the suppression claim that is appealable to this Court; whether it was proper for the merits of that claim to be developed is irrelevant in the face of their existence. See, e.g., People v. Jones, 21 N.Y.3d 449 (2013) (ruling after remand for suppression hearing); People v. Carrasquillo, 54 N.Y.2d 248 (1981) (same). Ignoring Mr. Allard's irrefutable arguments about the People's lack of due diligence based on the factual record developed at the hearing on the grounds that the hearing should not have been conducted, and the fact of the People's inexcusable delay should not have been revealed, would both pervert fundamental fairness and throw settled procedural law to the wind. There 34 would be nothing to stop the People from challenging adverse hearing decisions on myriad subjects in criminal cases on the ground that no hearing should have been held. But once an error is brought into the light of day during the course of a hearing, there can be no just reason for ignoring it on the ground that it should have remained hidden. (B) The People's arguments about the Appellate Division's 2014 order are, in any event, meritless because the court properly remitted the case for a hearing on Mr. Allard's 30.30 motion. Criminal Procedure Law§§ 210.20(g) and 30.30[1](a) provide that a defendant may move to dismiss an indictment on the ground that he has been denied the statutory right to a speedy trial. The procedure to be followed by the parties and court on such motion is governed by C.P .L. § 210.45. Criminal Procedure Law§ 210.45 [ 1] provides in relevant part that a defendant's motion to dismiss must be made in writing, on notice to the People, and contain sworn allegations of fact. See C.P.L. § 210.45[1]. In moving to dismiss an indictment for a 30.30 violation, a defendant must allege that the People have not been ready for trial within six months of the commencement of the action. 35 Peoplev. Goode, 87N.Y.2d 1045, 1047 (1996);Peoplev. Luperon, 85 N.Y.2d 71, 77-78 (1995); People v. Berkowitz, 50 N.Y.2d 333, 349 (1980). In opposition, the People may file an answer admitting or denying the allegations, and may "further submit documentary evidence refuting or tending to refute such allegations." See C.P.L. § 210.45[2]; People v. Santos, 68 N.Y.2d 859, 861 (1986); People v. Zirpola, 57 N.Y.2d 706, 708 (1982); Berkowitz, 50 N.Y.2d at 349. Once the People identify any statutory exclusions on which they intend to rely, the defendant may challenge the People's reliance on those exclusions by identifying any legal or factual impediments to their use. Goode, 87 N.Y.2d at 1047; Luperon, 85 N.Y.2d at 77-78. The court must determine whether the motion can be decided without a hearing to resolve any questions of fact. See C.P.L. § 210.45[3]. It may deny the motion without a hearing only if the People have met their burden of "conclusively refut[ing]" the defense allegations by "unquestionable documentary proof." See C.P.L. § 210.45[5](c). If the court does not dismiss the motion based on such "unquestionable documentary proof," it "must conduct a hearing and make findings of fact essential to the determination thereof." See C.P.L. § 210.45[6]. 36 It is undisputed- conceded, in fact, see People's Brief at 22 - that Mr. Allard met his initial burden in this case. He alleged that the People were chargeable with several pre-trial adjournment periods, including one of more than three months between the dismissal of charges from the first indictment and the filing of the second indictment. He further argued that the absence of a valid indictment during this period directly impaired the People's ability to proceed (A. 15, 19-20). When the burden then shifted to the People, however, they made only a conclusory assertion, with no independent factual support, that their witness was unavailable and beyond their control because he was on vacation in Egypt. This allegation did not constitute "unquestionable documentary proof' of that period's excludability. Indeed, the People did not claim in their 3 0 .3 0 papers that they had made any efforts to secure the witness's presence, much less diligent ones. See Berkowitz, 50 N.Y.2d at 348- 349 (People's assertion, unsupported by affidavits, that calendar notations indicating that adjournments were marked "excluded" established that fact did not constitute "conclusive proof' needed to warrant dismissal of30.30 motion without a full hearing); People v. Nowakowski, 49 N.Y.2d 723, 724 (1980) (error for court to dispose of30.30 motion without a hearing on "inadequate, skeletal record before it"). 37 Although the trial court initially found that the People had satisfied their burden of proof merely by alleging Wahib's absence from the country, the Appellate Division held otherwise and remitted the case to the Supreme Court for the full evidentiary hearing that court should have conducted in the first instance. See C.P.L. § 210.45[6]; Santos, 68 N.Y.2d at 861-862; Berkowitz, 50 N.Y.2d 348-349; People v. Nowakowski, 49 N.Y.2d 723, 724 (1980). Denying the defense motion because Mr. Allard "d[id] not dispute" the People's contention as to the complainant's unavailability was, as the Appellate Division recognized, impermissible and contrary to C.P.L. § 210.45[5]. Mr. Allard was not required to dispute the People's contention at this point because they had failed to carry their burden to conclusively refute the defense allegations with "unquestionable documentary proof." When they did not do that - and it is indisputable that they did not - the court was required to conduct a hearing. By ordering a hearing, the Appellate Division merely did that which the motion court was required, but had failed, to do. In determining appeals, the Appellate Division has broad, plenary powers to remit for hearings when it deems it necessary, a power that derives from our state constitution. See N.Y. Const., Art 6, §§ 1, 2, 4(k); C.P.L. § 450.10; People v. Pollenz, 67 N.Y.2d 264, 268 (1986); Judson v. Central 38 Vermont R. Co., 158 N.Y. 597, 600-601 (1899); Hopkins v. Clark, 149 N.Y. 329, 330-331 (1896). In the exercise of these powers, the Appellate Division has remitted for hearings on various issues to develop the record necessary to determine the issues raised on appeal. See, e.g., Church of Scientology of New York v. Tax Commission of the City of New York, 120 A.D.2d 376 (1st Dep't 1986); Matter of Park Knoll Associates v. New York State Division of Housing and Community Renewal, 80 A.D.2d 918 (2d Dep't 1981); Nicholson v. State Commission on Judicial Conduct, 67 A.D.2d 649 (1st Dep't 1979). Contrary to the People's contention that the Appellate Division gave Mr. Allard "a second chance to preserve his claim" (People's Brief at 29), the remittal for a hearing in this case was no different procedurally from remittals ordered by appellate courts on other claims as to which the lower courts had failed to develop the facts necessary to determine a claim on appeal. See, e.g., Jones, 21 N.Y.3d 449 (ruling after remand for suppression hearing); Carrasquillo, 54 N.Y.2d 248 (same); see also People v. Jones, 88 N.Y.2d 172 (1996) (remanding for completion of Batson hearing); People v. Lowery (companion case to Jones) (same); People v. Hameed, 88 N.Y.2d 232 (1996) (same as Jones and Lowery). The People do not cite a single case like this one, which is not uncommon, e.g., a case remitted for additional development of 39 facts when the trial court has erroneously determined that insufficient allegations were made for a hearing, or improperly cut a hearing short, for the proposition that a remittal under like circumstances is procedurally improper. Indeed, the Appellate Division has, in numerous cases, held appeals in abeyance and remitted for hearings when the People's opposition to a defendant's C.P.L. § 30.30 claim has raised a factual dispute but did not conclusively refute the defendant's claim with the "unquestionable documentary proof' required for denial without a hearing. See, e.g., People v. Smith, 245 A.D.2d 534 (2d Dep't 1997); People v. Davis, 184 A.D.2d 575 (2d Dep't 1992); People v. Reid, 102 A.D.2d 835 (2d Dep't 1984); People v. Tolentino, 71 A.D.2d 934 (2d Dep't 1979).6 In at least one such case, the Appellate Division held the appeal in abeyance and remitted for a hearing when the People had asserted below that a witness's unavailability constituted 6See also, e.g., People v. St. Louis, 41 A.D.3d 897 (3d Dep't 2007); People v. MacKenzie, 231 A.D.2d 7 40 (2d Dep 't 1996); People v. Vidal, 161 A.D.2d 313(lstDep't1990); Peoplev. Hammpud, 147 A.D.2d416 (lstDep't 1989); People v. Manescala, 138 A.D.2d 633 (2d Dep't 1988); People v. Wojciechowski, 132 A.D.2d 586 (2d Dep't 1987); People v. Parks, 72 A.D.2d 779 (2d Dep't 1979); People v. Schwartz, 54 A.D.2d 967 (2d Dep't 1976) (all holding appeal in abeyance and remitting for hearing on a defendant's C.P.L. § 30.30 claim when the People failed to provide conclusive proof needed to warrant summary dismissal of 30.30 motion). 40 an exceptional circumstance justifying delay, precisely the reason the court did so in this case. See People v. Thomas, 200 A.D.2d 866 (3d Dep't 1994). Once a hearing on remittal is conducted and the facts established, the parties are free to make arguments from those facts unencumbered by any limitations in the arguments that triggered the hearing. Thus, following 30.30 hearings held on remittal,just as in this case, appellate courts have ruled on the merits of the claims on appeals that were held in abeyance pending completion of the full evidentiary hearings. See, e.g., People v. Wilson, 207 A.D.2d 849 (2dDep't 1994), aff'd, 86N.Y.2d 753 (1995); Peoplev. Giordano, 81 A.D.2d 1003 (4th Dep't 1981), aff'd, 56 N.Y.2d 524 (1982); People v. Friscia, 73 A.D.2d 702(3dDep't 1979),aff'd, 51N.Y.2d845 (1980);Peoplev. Goodman, 46 A.D.2d 938 (3d Dep't 1974), aff'd, 41 N.Y.2d 888 (1977). This Court has similarly and repeatedly remitted for C.P .L. § 30.30 hearings that were required because the People failed to submit proof sufficient to defeat a claim on the motion papers. See, e.g., Santos, 68 N.Y.2d 859 (trial court had no factual basis on which to make necessary findings as to alleged periods of delay; People's affidavit in opposition was sufficient to raise factual dispute as to alleged exclusions but did not satisfy their burden as a matter of law); Berkowitz, 50 N.Y.2d 333 (People failed to provide "conclusive proof' 41 needed to refute defendant's initial contentions); Nowakowski, 49 N.Y.2d 723 (error for court to have disposed of30.30 motion on inadequate record; hearing and reconsideration ordered); People v. Singer, 44 N.Y.2d 241 (1978) (People's failure to establish good cause for delay required remand for hearing to afford parties opportunity to produce additional proof); People v. McLaurin, 38 N.Y.2d 123 (1975) (remittal required for development of record on which speedy trial claim could be determined). In his 30.30 motion, defense counsel included the 32-day period at issue as part of the greater period of time he claimed was chargeable to the People because they were unable to proceed not having re-indicted Mr. Allard. Counsel obviously would not have been privy to information about the complainant's vacation, much less when the complainant first told the People about it, and could not have included it in his initial motion. Nor could he have disputed the People's misleading suggestion that they were surprised by the complainant's vacation or otherwise unable to produce the complainant in the grand jury prior to his departure. In their response to the motion, the People claimed that they were not chargeable with the 32-day period because the complainant was on vacation and beyond their control, and that his unavailability therefore constituted an 42 excludable exceptional circumstance pursuant to C.P.L. § 30.30[4](g) (A. 23- 24, 28-29, 35-37). But they provided no proof of this in their papers. Indeed, on July 25, 2007, the prosecutor told the court that the People would not be re- presenting the case to a new grand jury before the week of August 27, and the court reminded the prosecutor that speedy trial time was "ticking away" and that a new indictment would relate back to the original indictment (R. 27-28). Nevertheless, the prosecutor did not give a reason why he needed another month. Under those circumstances, it was error for the motion court to accept the People's explanation at face value, unsupported by any documentary proof, much less "conclusively refut[ing]" proof that was "unquestionable," untested by a hearing at which Mr. Allard would have an opportunity to contend that the time was not excludable. Accordingly, the Appellate Division correctly ordered the hearing at which the prosecution's lack of diligence was firmly established. Mr. Allard's claim was also preserved because the court specifically found that the 32-day period was excludable based on the People's explanation. The court thus expressly acknowledged the issue concerning Wahib's availability and decided that issue in response to a protest by the 43 defense, preserving the claim for appellate review. See C.P.L. § 470.05[2] (a question of law is preserved if, in response to a protest by a party, the court expressly decides the question). The Appellate Division's citation of People v. Hampton,21 N.Y.3d277 (2013), andPeoplev. Prado, 4N.Y.3d 725 (2004) (see People v. Allard, 113 A.D.3d 624, 625 (2d Dep't 2014), was, accordingly, appropriate, and not, as the People contend, "overly broad" (People's brief at 28). See Hampton, 21 N.Y.3d at 284 n.2 (an issue is preserved when the court "expressly decide[s] the question raised on appeal"); Prado, 4 N.Y.3d 725 (general motion to dismiss counts would not alone have been sufficient to preserve issue, but issue was preserved when motion was coupled with trial court's findings, because issue was expressly decided by that court). There are no special rules exempting C.P .L. § 30.30 claims from the application of C.P .L. § 470.05[2]. Rather, the Appellate Division's preservation ruling fit comfortably within the statute, as well as this Court's precedent, on preservation. The People's reliance on People v. Beasley, 16 N.Y.3d 289 (2011), Goode, 87 N.Y.2d 1045, and Luperon, 85 N.Y.2d 71, is therefore misplaced. None of those decisions involved whether the defendant had met his initial burden of alleging that the People were not ready for trial within six months 44 and whether the defendant's initial allegations, coupled with the court's specific findings, preserved the issue raised on appeal. Moreover, also unlike here, the issues argued by the defendants on appeal had never been raised or initially determined below. Here, the issue decided on appeal was the same one argued below after the hearing. These cases are clearly distinguishable on procedural grounds from this one. The People's overarching, conclusory claim that the defense has posited an "extraordinary notion" that an unpreserved claim can be preserved by what happens "during the appeal" (People's brief at 29) is utterly specious, because that is not what happened here. Rather, the Appellate Division addressed the merits of Mr. Allard's claim only after the case had been properly remitted for development of the factual record, and Mr. Allard had made arguments to the trial court that persuaded it that a speedy trial violation had occurred. Obviously, once the facts were fleshed out at the hearing that should have been ordered in the first instance, Mr. Allard was permitted to raise new objections and make new arguments based on the newly-developed facts. Particularly meritless is the People's suggestion that, if this Court finds that Mr. Allard had preserved his claim, a trial court would not be able to decide whether a C.P.L. § 330.30 claim is preserved because the Appellate 45 Division could "allow the defendant to preserve [a] claim after [an] appeal is taken," and therefore "undermine the interest in finality that is furthered by the preservation requirement" (People's briefat 32-33). This case, however, does not involve post-appeal preservation, because Mr. Allard had already preserved his right to a hearing when he filed his 30.30 motion before trial. The People's arguments would only apply to a claim that there should have been a hearing that was not requested below - although even then the Appellate Division could remit for a fact-finding hearing if it determined that the trial court should have but failed to hold one. See, e.g., Jones, 88 N.Y.2d 172 (remanding for completion of Batson hearing). The Court should also reject the People's assertion (People's Brief at23- 28) that Mr. Allard's additional failure to argue in his motion papers, as he did in his opening brief to the Appellate Division, that the People could not avail themselves of the C.P.L. § 30.30[4](g) "exceptional circumstances" exclusion because they did not satisfy the due diligence requirement of that provision, rendered his claim unpreserved as a matter of law. This argument must be rejected for the simple reason that defense counsel was not obligated to anticipate facts that would be elicited at the hearing he had demanded and make prospective arguments about such facts before the hearing to which he 46 was entitled took place. Defense counsel was entitled to await the factual development of the People's assertions at a hearing during which Wahib and the prosecutor could be questioned about what the prosecutor knew about W ahib' s vacation, when he knew it, and what efforts the prosecutor made to procure W ahib' s testimony in a timely fashion notwithstanding his vacation plans. That the hearing the trial court should have ordered initially was not conducted until the Appellate Division ordered it did not render the arguments made after the hearing untimely. After the hearing, Mr. Allard could, and did, object to application of an exclusion based on facts of which neither he nor the court could have been aware based on the People's initial response in opposition to the motion -that the People should have known long in advance of the complainant's vacation plans but inexcusably made no effort to have him testify before the grand jury before he left the country. Once both parties made their arguments about the People's due diligence or lack thereof, the motion court, then the Appellate Division, properly ruled on the merits, on the law. The issues and arguments as to the 32-day period were thus fully explored at the hearing and in the motion papers submitted afterward, and were identical to those raised and 47 determined on appeal, and the People do not claim otherwise. They were, accordingly, preserved for appellate review. See C.P.L. § 470.05[2]. This Court should reject the People's attempt to shift the blame for the delay in bringing this case to trial to the defense. Mr. Allard preserved his right to a hearing when he filed his 30.30 motion; he did not "wait[] until his case was on appeal" (People's brief at 33-34). The People have essentially conceded that they inexcusably delayed in presenting this case to a new grand jury, and they misled the trial court with their less than candid, insufficient explanation at the time of the adjournment on July 25, 2007 (R. 27). There was no resultant fading of recollections of the determinative facts, i.e., that the People failed to contact the complainant in a timely manner after the dismissal of counts in the original indictment and before he went on vacation, as to which, but for their failure to keep in contact with him, they should have had plenty of advance notice. The delay - both pre-trial and post-verdict- was the result of the People's failure to act diligently in getting a timely indictment, and the motion court's denial of the hearing to which Mr. Allard was entitled. Given that Mr. Allard's claim that he had a right to a speedy trial hearing was preserved, as were his arguments on the merits after the hearing, the People's contention that this Court should remand the case for the Appellate 48 Division to consider whether to address Mr. Allard's 30.30 claim in the interest of justice (People's brief at 34-36) should be rejected. Their suggestion, moreover, that the Appellate Division could then reach their concededly unpreserved claim that defense counsel requested a month's adjournment, has already been decided against them by that court on preservation grounds, see People v. Allard, 128 A.D.3d 1081, 1082 (2d Dep't 2015), and that lack of preservation resulted in a failure to explore this claim at the hearing that has already been held. * * * In sum, the People's arguments about the Appellate Division's non-final 2014 order are entirely academic, unreviewable, and not cognizable on this appeal. In any event, the Appellate Division correctly recognized, pursuant to the initial arguments and decision on the 30.30 motion, that Mr. Allard had preserved his claim that he had a right to a hearing on his motion and that summary denial was error, and therefore remitted the matter to the motion court for that purpose. Once the hearing and arguments below were completed, the Appellate Division determined the preserved issue on the merits, a ruling the People do not herein challenge. This Court should affirm the order of the 49 Appellate Division granting the speedy trial motion and dismissing the indictment. 7 CONCLUSION THIS COURT SHOULD AFFIRM THE APPEL- LATE DIVISION'S DECISION AND ORDER. Dated: New York, New York June 10, 2016 Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Respondent By: JOSHUA M. LEVINE, Of Counsel 7In the event that this Court disagrees with this conclusion in both respects, it should remand the case to the Appellate Division for exercise of its interest of justice review as to Mr. Allard's speedy trial claim, as well as its consideration of other issues raised by him but not yet reached by that court. 50