38 N.Y.2d 625 | NY | 1976
Memorandum. The principle issue, on the motion for dis
On April 2, 1973, a felony complaint was filed charging defendant with possession of a loaded firearm (Penal Law, § 265.05, subd 2) and escape in the second degree (Penal Law, § 205.10, subd 2). She was indicted for these crimes on November 2, 1973 and, according to defendant’s filed memorandum, the case was placed on the Trial Calendar of the County Court of Monroe County on January 23, 1974.
Except as otherwise provided in CPL 30.30 (subd 3), not relevant here, a motion made pursuant to CPL 210.20 (subd 1, par [g]) must be granted where the People are not ready for trial within six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony (CPL 30.30, subd 1, par [a]). A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court (CPL 1.20, subd 17) and, in computing the time within which the prosecution must be ready for trial pursuant to CPL 30.30 (subd 1) certain periods must be excluded (see CPL 30.30, subd 4).
Nine months and 21 days elapsed from April 2, 1973, the date of commencement, until January 23, 1974, when the case was moved to the Trial Calendar. To be deducted therefrom is a delay of nine days, from April 7 to April 16, 1973, occasioned by defendant’s counsel’s request for an adjournment (CPL 30.30, subd 4, par [b]) and a period of four days, from April 16 to April 20, 1973, during which a Judge of the City Court of Rochester retained all papers pertaining to the action before submitting them to the District Attorney (CPL 30.30, subd 4, par [g]).
However, for time to be excludable under CPL 30.30, (subd 4, par [c]) there must be more than mere absence or unavailability. Explicitly under the statute, delay must result therefrom. Defendant’s absence from August 18 to November 2, 1973, when the indictment was returned, did not result in a delay, attributable to her, since the finding of the indictment was in no way impeded or prevented by the absence. On October 24, 1973, which was more than six months after the matter was referred to the Grand Jury and also more than six months after the papers were submitted to the District Attorney by the City Court Judge, a "notice was sent to defendant to appear in Grand Jury for 10/29/73 and was never received”. There is nothing to indicate that defendant had ever requested an appearance before the Grand Jury. Indeed, the lack of relation between defendant’s absence and the delay in indicting is apparent from the affidavit of the Assistant District Attorney stating: "The People contend that the Court take cognizance of previous affidavits submitted [apparently in other matters] indicating a backlog of cases, an inadequate
Since the period between the commencement of the criminal action and the time when the People were ready for trial, after deducting periods properly excludable, exceeded six months, the order of the Appellate Division must be reversed and the motion to dismiss granted.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.
Order reversed, etc.
The People’s brief in this court indicates that the matter was placed on the Trial Calendar on February 19, 1974.