151 A.D.2d 142, People v. Toro

Citation:151 A.D.2d 142, 546 N.Y.S.2d 842
Party Name:People v. Toro
Case Date:October 31, 1989
Court:New York Supreme Court Appelate Division, First Department
 
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Page 142

151 A.D.2d 142

546 N.Y.S.2d 842

The PEOPLE of the State of New York, Appellant,

v.

Alex TORO, Defendant-Respondent.

Supreme Court of New York, First Department

October 31, 1989.

Page 143

[546 N.Y.S.2d 843] 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.

RUBIN, Justice.

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...

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