The People, Appellant,v.Dru Allard, Respondent.BriefN.Y.September 6, 2016COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- DRU ALLARD, Defendant-Respondent. To be argued by: THOMAS M. ROSS ( 15 Minutes) Kings County Indictment Numbers 9083/2006 8542/2007 APL-2015-00241 APPELLANT'S REPLY BRIEF LEONARD JOBLOVE THOMAS M. ROSS Assistant District Attorneys of Counsel Telephone: (718) 250-2534 Facsimile: (718) 722-4223 July 14, 2016 KENNETH P. THOMPSON DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK II20I-2908 (7 I 8) 250-2000 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................ ~ POINT I - THE ISSUE OF WHETHER DEFENDANT'S C.P.L. § 30.30 CLAIM IS UNPRESERVED, AND WHETHER THE APPELLATE DIVISION THEREFORE ERRED BY REVERSING THE JUDGMENT OF CONVICTION, ON THE LAW, AND DISMISSING THE INDICTMENT, IS REVIEWABLE ON THIS APPEAL .............................. . . .. ........... 1 POINT II - THE FACT THAT THE TRIAL COURT DECIDED DEFENDANT ' S C.P.L. § 30.30 MOTION WITHOUT CONDUCTING AN EVIDENTIARY HEARING DOES NOT EXCUSE DEFENDANT'S FAILURE TO PRESERVE, BY A TIMELY OBJECTION IN THE TRIAL COURT, HIS ARGUMENT REGARDING THE APPLICABILITY OF THE C .. P . L . § 30.30(4) (g) EXCLUSION ............... . . .... ... . ......................... . 6 A. Defendant Could Have Challenged the Applicability of the C.P.L. § 30.30(4) (g) Exclusion Regardless of Whether the Trial Court Conducted a Hearing ........... 6 B. The Trial Court Did Not Have to Hold a Hearing on Defendant's C. P. L . § 30.30 Motion, Because Defendant Failed to Create an Issue of Fact that Needed to be Resolved . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . 8 POINT III - THIS COURT'S DECISIONS IN PEOPLE v. HAMPTON AND PEOPLE v. PRADO DO NOT SUPPORT THE CONCLUSION THAT DEFENDANT'S C. P . L. § 30. 30 CLAIM IS PRESERVED . . . . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION - FOR THE REASONS STATED IN THIS BRIEF AND IN THE PEOPLE' S MAIN BRIEF, THE ORDER OF THE APPELLATE DIVISION SHOULD BE REVERSED, THE JUDGMENT OF CONVICTION SHOULD BE REINSTATED, AND THE CASE SHOULD BE REMITTED TO THE APPELLATE DIVISION FOR THAT COURT TO DETERMINE WHETHER TO REACH DEFENDANT'S CLAIM IN THE INTEREST OF JUSTICE ..... 19 TABLE OF AUTHORITIES Pages CASES People v. Allard, 128 A.D.3d 1081 (2d Dep't 2015) ............. 2 People v. Allard, 113 A.D.3d 624 (2d Dep't 2014) .............. 2 People v. Autry, 75 N.Y.2d 836 (1990) ....................... 2-3 People v. Beasley, 16 N.Y.3d 289 (2011) .............. 9-11, 16-18 People v. Creech, 60 N.Y.2d 895 (1983), rev'g 90 A. D. 2d 701 (1st Dep' t 1982) .............................. 3 People v. DeLaRosa, 236 A.D.2d 280 (1st Dep't 1997) ........... 14 People v. Fehr, 75 N.Y.2d 836 (1990) ........................... 3 People v. Fehr, 150 A.D.2d 601 (2d Dep't 1989) ................. 3 People v. Goode, 87 N.Y.2d 1045 (1996) .............. 9, 11, 16-18 People v. Gruden, 42 N.Y.2d 214 (1977) ........................ 13 People v. Hampton, 21 N.Y.3d 277 (2013) ................ 15-16, 18 People v. Hoke, 62 N.Y.2d 1022 (1984), dismissing appeal from 96 A.D.2d 644 (3d Dep't 1983) ........................... 3 People v. Jackson, 225 A.D.2d 794 (2d Dep't 1996) ............. 14 People v. Luperon, 85 N.Y.2d 71 (1995) .............. 9, 11, 16-18 People v. Pivoda, 186 A.D.2d 875 (3d Dep't 1992) .............. 14 People v. Prado, 4 N.Y.3d 725 (2004) ................... 15-16, 18 People v. Reyes, 240 A.D.2d 165 (1st Dep't 1997) .............. 13 People v. Rodriguez, 210 A.D.2d 116 (1st Dep't 1994) .......... 14 TABLE OF CONTENTS STATUTES C . P • L • § 3 0 . 3 0 . • . • . • . • . • . • . • . . . . . • . • . • . . . . • • . . . . • . . • . . • • . • passim C.P. L . § 210.45 .•.•...•.•.• . •.•. •..••.....•••...•.••..••.•.•. 8- 13 C . P.L . § 470.05 .. . .. . . ............ ..... ....•...•... •. . ..• . . 15- 18 ii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- DRU ALLARD, Defendant-Respondent. Kings County Indictment Numbers 9083/2006 8542/2007 APL-2015-00241 APPELLANT'S REPLY BRIEF POINT I THE ISSUE OF WHETHER DEFENDANT'S C.P.L. § 30.30 CLAIM IS UNPRESERVED, AND WHETHER THE APPELLATE DIVISION THEREFORE ERRED BY REVERSING THE JUDGMENT OF CONVICTION, ON THE LAW, AND DISMISSING THE INDICTMENT, IS REVIEWABLE ON THIS APPEAL. As defendant correctly states (Defendant's Brief at 28, 32) , the People are appealing to this Court from the Appellate Division's order, dated May 27, 2015, reversing defendant's judgment of conviction and dismissing the indictment. However, defendant is incorrect in stating that "[the People] make no complaint whatsoever about that order, either as to preservation or merits of the C.P.L. § 30.30 issue" (Defendant's Brief at 28- 29), and he is also incorrect in stating that "[the People's] entire argument is that the Appellate Division's January 8, 2014, order remitting for a hearing was error" (id. at 29). First, the People do challenge the Appellate Division's 2015 order "as to preservation of the C.P.L. § 30.30 issue." In fact, the preservation holding of the 2015 order is the entire basis of the People's appeal. The Appellate Division's holding that the C. P. L. § 30. 30 claim was preserved is evident from that court's statement in its 2015 order that the judgment was reversed "on the law" (A.4), People v. Allard, 128 A.D.3d 1081 (2d Dep't 2015), but that holding is also evident from that court's statement in its 2014 order that "the defendant's claim that the summary denial [of his motion to dismiss the indictment pursuant to C.P.L. § 30.30] was error is properly preserved for appellate review" (A.7) . 1 Allard, 113 A.D.3d 624, 625 (2d Dep't 2014). People v. Contrary to defendant's suggestion, the fact that the Appellate Division's 2014 order remitting for a hearing is not an appealable order does not preclude this Court from considering language in that order in determining whether the Appellate Division's 2015 order reversing the judgment of conviction was based on that court's conclusion that the C.P.L. § 30.30 claim was preserved. Indeed, in People v. Autry, 7 5 N.Y.2d 836 (1990), this Court concluded (in the consolidated 1 Numbers in parentheses refer to pages of the appendix. 2 case of reversed People v. Fehr) the defendant's that, where conviction "on the Appellate Division the law" failure to raise a timely objection to the charge, despite his "[i]t [was] clear from the Appellate Division writing, including citation of its previous cases addressing the point, that the court concluded that no objection was required to preserve the legal issue for review." Id. at 839; see People v. Fehr, 150 A.D.2d 601 (2d Dep't 1989). Given that, in Autry, the Appellate Division's statement that the reversal was "on the law," as well as that court's citation to certain other cases, showed that the Appellate Division's reversal was based on the premise that the claim at issue was preserved, it is even clearer that, in this case, the Appellate Division's statement that the reversal was "on the law," as well as that court's citation to its previous decision on the same appeal (in which the Appellate Division had explicitly held that defendant's claim was preserved), likewise shows that the Appellate Division's reversal was based on the premise that the claim at issue was preserved. See also People v. Creech, 60 N.Y.2d 895 (1983), rev'g 90 A.D.2d 701 (1st Dep't 1982) (similar holding where Appellate Division reversed conviction "on the law" and cited decision in another case); cf. People v. Hoke, 62 N. Y.2d 1022, 1023 (1984), dismissing appeal from 96 A.D.2d 644 (3d Dep't 1983) (although Appellate Division 3 order stated that reversal of conviction was "on the law," Appellate Division opinion "reveal [ed] that it was in fact based upon an exercise of discretion") . Second, contrary to defendant's assertion, the People's "entire argument" is not "that the Appellate Division's January 8, 2014, order remitting for a hearing was error" (Defendant's Brief at 29). Rather, the People's "entire argument" is that the Appellate Division's 2015 order reversing the judgment of conviction and dismissing the indictment was error, because that order rested on the incorrect premise that defendant's C.P.L. § 30.30 claim was preserved. Indeed, the People are not disputing that the Appellate Division could have remitted the case, in the exercise of its interest of justice jurisdiction, for a hearing (see People's Main Brief at 29); but that is not what the Appellate Division did. Rather, the Appellate Division first remitted for a hearing, and then reversed the conviction, on the basis of that court's erroneous premise that the C.P.L. § 30.30 claim was preserved. The People can appeal, and are appealing, only from the order reversing the judgment of conviction, and not from the order remitting for a hearing. Moreover, contrary to defendant's contention (Defendant's Brief at 32-35), the hearing in the Supreme Court after remittal 4 from the Appellate Division did not cure defendant's failure to preserve his C.P.L. § 30.30 claim before he took his appeal (see People's Main Brief at 28-34; see also, infra, at Point II). Consequently, contrary to defendant's contention (Defendant's Brief at 30-35), the People's argument that his C. P. L. § 30.30 claim is unpreserved is not "academic" and is cognizable on this appeal. 5 POINT II THE FACT THAT THE TRIAL COURT DECIDED DEFENDANT'S C.P.L. § 30.30 MOTION WITHOUT CONDUCTING AN EVIDENTIARY HEARING DOES NOT EXCUSE DEFENDANT'S FAILURE TO PRESERVE, BY A TIMELY OBJECTION IN THE TRIAL COURT, HIS ARGUMENT REGARDING THE APPLICABILITY OF THE C.P.L. § 30.30(4) (g) EXCLUSION. In defendant's brief, he argues that he could not have preserved his C. P. L. § 30.30 claim until an evidentiary hearing was held on his C.P.L. § 30.30 motion. Defendant further argues that the trial court erred by failing to conduct an evidentiary hearing on his C.P.L. § 30.30 motion prior to trial. Both of these arguments are meritless. First, defendant did not need an evidentiary hearing in order to claim that the allegations of fact set forth in the People's answer, even if true, were insufficient to establish that the period at issue was excludable pursuant to C.P.L. § 30.30(4) (g) (see, infra, at 6-8). Second, the trial court was not required to conduct an evidentiary hearing before deciding defendant's C. P. L. § 30.30 motion, because defendant did not dispute the factual allegations set forth in the People's answer (see, infra, at 8-14). A. Defendant Could Have Challenged the Applicability of the C.P.L. § 30.30(4) (g) Exclusion Regardless of Whether the Trial Court Conducted a Hearing. In this Court, defendant argues that his failure to assert his claim in the trial court prior to the determination of the 6 C. P. L. § 30.30 motion should be excused, because, according to defendant, he could not have challenged the applicability of the C.P.L. § 30.30(4) (g) exclusion to the 32-day period at issue until "the facts were fleshed out at the hearing that should have been ordered in the first instancen and because he "was not obligated to anticipate facts that would be elicited at the hearing he had demandedn (Defendant's Brief at 45-47). However, defendant's failure to assert his claim prior to the determination of the C. P. L. § 30.30 motion should not be excused, because defendant's ability to argue in the trial court that the C.P.L. § 30.30(4) (g) exclusion was inapplicable did not depend on whether the trial court conducted a hearing on the C.P.L. § 30.30 motion. Defendant's argument that the C.P.L. § 30.30(4) (g) exclusion was inapplicable is an argument that the factual allegations set forth in the People's answer, even if true, were insufficient to establish that the exclusion applied. Thus, a hearing at which the People would seek to prove that their factual allegations were true would have no bearing on defendant's ability to argue that the exclusion was inapplicable even if those allegations were true. Indeed, on defendant's appeal to the Appellate Division, prior to that court's remittal of the case for a hearing, defendant argued that the C.P.L. § 30.30(4) (g) exclusion was 7 inapplicable because the People did not show due diligence in procuring the complainant's testimony and because the complainant's vacation did not constitute an exceptional circumstance. Thus, the lack of a hearing did not prevent defendant from raising on appeal his argument that the C.P.L. § 30.30 ( 4) (g) exclusion was inapplicable. If defendant could raise his argument on appeal without a hearing having been conducted, then defendant could have similarly raised his argument in the trial court during the initial litigation of his C.P.L. § 30.30 motion. Therefore, the fact that the trial court did not order a hearing on the C.P.L. § 30.30 motion did not excuse defendant's failure to preserve his C.P.L. § 30.30 claim for appellate review by a timely objection in the trial court. B. The Trial Court Did Not Have to Hold a Hearing on Defendant's C.P.L. § 30.30 Motion, Because Defendant Failed to Create an Issue of Fact that Needed to be Resolved. Defendant argues that the trial court was required to hold a hearing because, in responding to defendant's C.P.L. § 30.30 motion, the People did not present "unquestionable documentary proof," within the meaning of C.P.L. § 210.45(5) (c), that the complainant was unavailable for the 32-day period at issue. However, the trial court was not required to hold a hearing on defendant's C.P.L. § 30.30 motion, because there was no issue of 8 fact to be resolved. A court may deny a defendant' s motion to dismiss an indictment without holding a hearing if (among other circumstances not relevant here) "[a] n allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof." C.P.L. § 210.45(5) (c). Here, when defendant asserted in his C. P. L. § 30.30 motion that the 97-day period from dismissal of counts of the first indictment to the filing of the second indictment (May 31, 2007 to September 5, 2007) was chargeable to the People, the People responded by asserting that a 32-day period within that 97-day period was excludable under the exceptional circumstances provision of C.P.L. § 30.30(4) (g) because of the complainant's overseas vacation, which rendered him unavailabile to testify in the grand jury. After the People asserted that exclusion, defendant in order to preserve a claim that the C.P.L. § 30.30(4) (g) exclusion was inapplicable-- had to "identify[] any legal or factual impediments to the use of [that] exclusion." See People v. Beasley, 16 N.Y.3d 289, 292 (2011) (quoting People v. Goode, 87 N.Y.2d 1045, 1047 [1996]); see also People v. Luperon, 85 N.Y.2d 71, 78 (1995) ("In the CPL 30.30 context, the People must ordinarily identify the exclusions on which they intend to rely, and the defense must identify any legal or factual impediments to the use of these exclusions"). 9 However, prior to the determination of the C.P.L. § 30. 30 motion, defendant did not identify any legal impediments to the use of the C.P.L. § 30.30(4) (g) exclusion -- ~' he did not argue that a witness's vacation could not be an exceptional circumstance as a matter of law or that the People's allegations did not establish due diligence either in dissuading the complainant from going on vacation or in procuring his testimony before he went away. Defendant also did not identify any factual impediments to the use of the C.P.L. § 30.30(4) (g) exclusion ~' he did not argue that the complainant was not on vacation or otherwise unavailable to testify in the grand jury during the 32- day period. Because defendant did not identify any factual impediments to the applicability of the C.P.L. § 30.30(4) (g) exclusion, he did not create a factual dispute that needed to be resolved at a hearing. 2 See C.P.L. § 210.45(3) (court must review submissions of the parties "for the purpose of determining whether 2 Defendant's assertion that, in the trial court, he "demanded" a hearing (Defendant's Brief at 46) is apparently a reference to his statement, at the conclusion of his C.P.L. § 30. 30 motion, that the requested relief -- dismissal of the indictment "be summarily granted or a hearing be held to determine the facts" (A. 22) . That general statement failed to create or specify any factual dispute that required a hearing, let alone identify any "factual impediment[]" to the applicability of the C. P.L. § 30.30 (4) (g) exclusion to the 32-day period at issue. See Beasley, 16 N.Y.3d at 292. Thus, that statement in defendant's C.P.L. § 30.30 motion did not require the trial court to conduct a hearing. 10 the motion [to dismiss an indictment] is determinable without a hearing to resolve questions of fact"). Additionally, defendant's argument that a hearing was necessary here because the People "did not conclusively refute the defendant's claim with the 'unquestionable documentary proof' required for denial without a hearing" (Defendant's Brief at 40) cannot be reconciled with this Court's decisions in Beasley, Goode, and Luper on. Those decisions, in essence, articulate a three-step procedure for applying the rules of C.P.L. § 210.45 to the determination of a motion to dismiss an indictment pursuant to C.P.L. § 30.30: (1) the defendant has the initial, minimal burden of alleging only that "the prosecution failed to declare readiness within the statutorily prescribed time period"; (2) the People have the burden to assert any statutory exclusions; and (3) the defendant must identify "any legal or factual impediments" to the applicability of the exclusions asserted by the People. Beasley, 16 N.Y.3d at 292; Goode, 87 N.Y.2d at 1047; Luperon, 85 N.Y.2d at 77-78. Defendant's argument that the trial court was required to conduct a hearing -- despite defendant's complete failure, prior to the determination of the C.P.L. § 30.30 motion, to dispute the facts alleged by the People in support of the exclusion of the 32- day period at issue disregards the third step of the Beasley/Goode/Luperon procedure. 11 Pursuant to that procedure, when the People have asserted a statutory exclusion (which, in this case, was the exceptional circumstances exclusion under C.P.L. § 30.30[4] [g]) and have alleged facts in support of that exclusion (which, in this case, was that the complainant was on vacation overseas), the court is authorized to deny the C.P.L. § 30.30 motion without a hearing if the defendant has not disputed the facts alleged by the People and if the court determines that those undisputed facts support the exclusion asserted by the People. Indeed, in the decision denying defendant's C.P.L. § 30.30 motion, the trial court explicitly noted that the defense "d [id] not dispute" the People's assertion that the complainant was out of the country during the period at issue (A.43). Defendant, relying on C.P.L. § 210.45(5) (c), argues that the court lacked the authority to deny the motion without a hearing, because the People's allegation -- that, during the period at issue, the complainant was on vacation overseas was not supported by "unquestionable documentary proof." However, wh<;m, as in this case, the defendant has not disputed the facts alleged by the People in support of a statutory exclusion, those facts are deemed to be conceded by the defendant and thus should be treated as if they have been established by "unquestionable documentary 12 proof." See People v. Gruden, 42 N.Y.2d 214, 216 (1977) ("Normally what is not disputed is deemed to be conceded") . In Gruden, this Court rejected a "literal" interpretation of C.P.L. § 210.45 that would have precluded a court from granting a C.P.L. § 30.30 motion without a hearing unless the People expressly conceded the facts alleged in the motion to be true. Id. at 215-16. Instead, this Court -- noting that "[g] enerally hearings are not available merely for the asking" -- held that a court may grant a motion to dismiss without a hearing "unless the papers submitted by the prosecutor show that there is a factual dispute which must be resolved at a hearing." Id. at 217. Similarly, in this case, this Court should reject a literal interpretation of C.P.L. § 210.45 that would preclude a court from denying a C. P. L. § 30.30 motion without a hearing even when the facts alleged by the People have been effectively conceded by the defendant, and thus there is no "factual dispute which must be resolved at a hearing." See id. (rejecting People's argument that Legislature intended "that they have the final option of demanding a hearing, by inaction, even though they may realize that the facts alleged are accurate"); see also People v. Reyes, 240 A.D.2d 165 (1st Dep' t 1997) (prosecutor's sworn affirmation submitted in opposition to defendant's speedy trial motion, which defendant did not challenge, sufficiently established reason for adjournment) ; 13 People v. DeLaRosa, 236 A.D.2d 280, 281 (1st Dep't 1997) (where defendant did not contest prosecutor's sworn allegation regarding reason for adjournment, "the prosecutor's uncontested and undisputed sworn representation was entitled to credence"); People v. Rodriguez, 210 A.D.2d 116, 117 (1st Dep't 1994) (no hearing on C. P. L. § 30. 30 motion was required, because "the People's uncontradicted response" set forth the excludable periods "with sufficient specificity"); cf. People v. Jackson, 225 A.D.2d 794, 795 (2d Dep't 1996) (hearing was required where, "[a]lthough the calendar and file jacket notations appear to confirm the People's contention and the Supreme Court's finding that the People met their burden of demonstrating sufficient excludable time, the parties were in complete disagreement about what occurred on the various court dates"); People v. Pivoda, 186 A.D.2d 875, 876 (3d Dep' t 1992) (where People asserted an exclusion of a reasonable time to transcribe grand jury minutes and to submit them to the court, hearing was necessary because defendant disputed People's assertion as to how much time was reasonable). Therefore, the fact that the trial court decided defendant's C.P.L. § 30.30 motion without conducting a hearing does not excuse defendant's failure to preserve, by a timely objection in the trial court, his claim regarding the excludability of the 32-day period at issue. 14 POINT III THIS COURT'S DECISIONS IN PEOPLE v. HAMPTON AND PEOPLE v. PRADO DO NOT SUPPORT THE CONCLUSION THAT DEFENDANT'S C.P.L. § 30.30 CLAIM IS PRESERVED. Defendant contends that his argument regarding the applicability of the C.P.L. § 30.30(4) (g) exclusion is preserved for appellate review, in light of this Court's rulings in People v. Hampton, 21 N.Y.3d 277 (2013), and People v. Prado, 4 N.Y.3d 725 (2004) (see Defendant's Brief at 43-44). This contention is utterly without merit. In both Hampton and Prado, this Court held that a claim was preserved for appellate review, even though the defendant did not raise the claim before trial court, because the trial court, in its ruling, "expressly decided" the claim in response to the defendant's objection. Hampton, 21 N.Y.3d at 284 n.2 (quoting C.P.L. § 470.05[2]); Prado, 4 N.Y.3d at 726 (citing C.P.L. § 470.05). In this case, by contrast, in denying defendant's C.P.L. § 30.30 motion, the trial court did not "expressly decide []" the question of whether the C. P. L. § 30. 30 ( 4) (g) exclusion was inapplicable to the 32-day period at issue, either because the People allegedly did not meet the due diligence requirement of that provision or because the complainant's vacation allegedly did not constitute an exceptional circumstance 15 within the meaning of that provision (see People's Main Brief at 26-28). Indeed, defendant' s proposed interpretation of the language of C. P.L. § 470.05 (2) that was applied in Hampton and Prado -- namely, the language that provides that a claim is preserved if, ~in re[s]ponse to a protest by a party, the court expressly decided the question raised on appeal" -- is irreconcilable with this Court's decisions in People v. Beasley, 16 N.Y.3d 289 (2011), People v. Goode, 87 N.Y.2d 1045 (1996), and People v. Luperon, 85 N.Y.2d 71 (1995). Defendant argues that his claim is preserved in light of that language of C.P.L. § 470.05(2), because ~the court specifically found that the 32-day period was excludable based on the People's explanation" (Defendant's Brief at 43-44) . But if the trial court's acceptance of the People's argument for the exclusion of a particular period were sufficient to establish preservation of any arguments advanced by the defendant for the first time on appeal regarding the applicability of the exclusion asserted by the People, then the rule of Beasley, Goode, and Luperon -- which requires the defendant ~to point out the legal or factual impediments to the People's arguments" (Beasley, 16 N.Y.3d 293), and which is a rule ~to be adhered to strictly" (id. [quotation marks, brackets, and citation omitted]) would be nullified, because the trial court's exclusion of the period at 16 issue (together with the defendant's C.P.L. § 30.30 motion, which would be the ftprotest by a partyn required by C.P.L. § 470.05[2]) would, without more, preserve any claim on appeal that the exclusion was inapplicable. In Beasley, Goode, and Luperon -- as in this case -- the trial court held that the period at issue was excludable on the ground proffered by the People, but, in each of those cases, that ruling did not preserve an argument advanced by the defendant, for the first time on appeal, regarding the applicability of the ground for exclusion proffered by the People. See Beasley, 16 N.Y.3d at 291-92 (motion court's ruling that 13- day period was excludable pursuant to C.P.L. § 30.30[4] [a] because of motion practice did not preserve for appellate review defendant's claim on appeal that C.P.L. § 30.30[4] [a] exclusion was inapplicable to that period because of People's alleged failure to timely provide grand jury minutes to the court); Goode, 87 N.Y.2d at 1047 (motion court's ruling that period during which defendant was medically quarantined was excludable pursuant to C. P. L. § 30.30 [ 4] [g] did not preserve for appellate review defendant's claim on appeal that c. P. L. § 30.30 [ 4] [ g] exclusion was inapplicable to that period because defendant's medical quarantine did not cause People's unreadiness for trial); Luperon, 85 N.Y.2d at 77-78 (motion court's ruling that period during which defendant was absent was excludable pursuant to C.P.L. 17 § 30.30[4] [c] did not preserve for appellate review defendant's claim on appeal that C.P.L. § 30.30[4] [c] was inapplicable to that period because defendant had not been notified of his indictment or his arraignment date) . Thus, in light of the holding of Beasley, Goode, and Luperon, defendant's reliance on Hampton and Prado is misplaced, and his proposed interpretation of C.P.L. § 470.05(2) should be rejected. Because the court that decided defendant's C.P.L. § 30.30 motion did not expressly decide the issue that defendant raised on his appeal to the Appellate Division, defendant's claim is unpreserved. 18 CONCLUSION FOR THE REASONS STATED IN THIS BRIEF AND IN THE PEOPLE ' S MAIN BRIEF, THE ORDER OF THE APPELLATE DIVISION SHOULD BE REVERSED, THE JUDGMENT OF CONVI CTION SHOULD BE REINSTATED, AND THE CASE SHOULD BE REMITTED TO THE APPELLATE DIVISION FOR THAT COURT TO DETERMINE WHETHER TO REACH DEFENDANT'S CLAIM IN THE INTEREST OF JUSTICE . Dated : Brooklyn, New York July 14 , 2016 LEONARD JOBLOVE THOMAS M. ROSS Assistant District Attorneys of Counsel Respectfully submitted, KENNETH P. THOMPSON District Attorney Kings County 19