People v. Toro
| Citation | 546 N.Y.S.2d 842,151 A.D.2d 142 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Alex TORO, Defendant-Respondent. |
| Decision Date | 31 October 1989 |
| Court | New York Supreme Court Appellate Division |
Carol A. Remer-Smith, of counsel (Mark Dwyer with her on the brief; Robert M. Morgenthau, New York City, attorney), for appellant.
Carol Grumbach, of counsel (Philip L. Weinstein, New York City, attorney), for defendant-respondent.
Before KUPFERMAN, J.P., and ROSS, KASSAL, ELLERIN and RUBIN, JJ.
Defendant brought a motion to dismiss the indictment against him on the ground that his right to a speedy trial had been violated (CPL 30.30). At the hearing on the motion, the court found a total of 242 days includable pursuant to CPL 30.30(4)(c). The trial judge charged the People with 49 days out of a period of 51 days from April 15 to June 5, 1986, during which time the record reflects that defendant was reported by counsel to have been hospitalized. The court issued a bench warrant on April 15, which it stayed until the next scheduled court appearance on May 5. On this occasion, it was reported by an attorney for Legal Aid that defendant was incarcerated on another charge. The matter was then adjourned until May 7 to join the other case. On that date, defendant was reported to be in Bellvue Hospital with "kidney problems." Defendant subsequently underwent a splenectomy.
The trial court charged the periods from April 15 to May 5 and from May 7 to June 5 to the People. Upon this appeal, the parties debate whether defendant was "unavailable" within the contemplation of CPL 30.30(4)(c) and whether the People can be required to affirmatively demonstrate that his presence for trial could not be obtained by due diligence (see, People v. Taylor, 127 A.D.2d 714, 511 N.Y.S.2d 908). Court records are inconsistent, indicating both that the adjournment was by "consent" and that the time was to be included for the purpose of calculating the statutory period (CPL 30.30(1)(a)). (The record also discloses that an offer of a one-year sentence in return for a plea of guilty to a class A misdemeanor was made to defendant at this time.) However, it is clear from defendant's absence due to hospitalization that the bench warrant was stayed for his convenience, and this time period is therefore excludable (People v. Meierdiercks, 68 N.Y.2d 613, 505 N.Y.S.2d 51, 496 N.E.2d 210). The period from May 7 to June 5 is similarly excludable on account of defendant's absence due to his hospitalization for major surgery.
The indictment was filed on June 13, 1986 and adjourned for arraignment until June 26, when it was again adjourned to June 30. This period was improperly excluded. It is settled that the period from the commencement of an action, viz. the date the complaint is filed (CPL 100.05), to the date of arraignment on the indictment is chargeable to the People (People v. Rhee, 111 A.D.2d 655, 490 N.Y.S.2d 215).
Finally, the motion court improperly included the period from June 30 to August 26, 1986. On June 30, defendant submitted an omnibus motion demanding, inter alia, dismissal of the indictment on the ground that he was not accorded an opportunity to appear and testify before the Grand Jury (CPL 210.20; 210.35). This motion was subsequently granted and the indictment dismissed with leave to resubmit. A second indictment was filed on December 5, 1986. The motion court reasoned that defendant should not be charged with the time necessary to determine the motion which resulted in dismissal of the first indictment.
The Court of Appeals has clearly set forth the law in this area. There is only "one criminal action for each set of criminal charges...
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