People v. Correa
| Decision Date | 15 May 1990 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Gregory CORREA, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
D. Roney, for appellant.
P. Peters, for defendant-respondent.
Before KUPFERMAN, J.P., and SULLIVAN, MILONAS, ASCH and SMITH, JJ.
Order, Supreme Court, New York County (Dorothy Cropper, J.), entered July 9, 1987, which granted defendant's motion to dismiss the indictment charging him with grand larceny in the second degree, criminal possession of stolen property in the first degree and unauthorized use of a vehicle in the third degree, on the ground of the denial of his right to a speedy trial, is affirmed.
The trial court was correct when it determined that the prosecution was not ready to proceed to trial within six months of the date that it commenced action against the defendant.
The statutory six-month period (184 days) is measured from August 13, 1986, the day on which defendant was arraigned on the original felony complaint (People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793).
The period of August 13, 1986 (the date of arraignment on the felony complaint) until September 9, 1986 (the date of arraignment on the first indictment), for a total of 27 days, is chargeable to the People. The People concede the first 2 days are chargeable to them and, as to the remaining 25, they assert in their reply brief that they "no longer argue that this time should have been excluded".
On September 9, 1986 (date of arraignment on the indictment), the matter was adjourned to September 26, 1986. The record does not support the People's position that it was adjourned for plea negotiations (see, People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783).
On November 21, 1986, the matter was adjourned until November 24, 1986, to discuss the People's position of bringing a superseding indictment. This period of 3 days is not chargeable to the People (CPL 30.30[4][a].
On December 5, 1986, a superseding indictment was filed and defendant was arraigned on that indictment on December 15, 1986. This period of 10 days is also chargeable to the People.
On February 2, 1987, the People requested an adjournment and the case was put over until February 19, 1987. The fact that defense counsel filed a Notice of Actual Engagement for February 5, 1987 is irrelevant. This period of 17 days is chargeable to the People.
On April 2, 1987, the court was not in session and the matter was put over until April 15, 1987. "[T]he unavailability of the court due to vacation or for its own convenience" is not chargeable to the People since "CPL 30.30, although entitled 'Speedy trial', really addresses prosecutorial, not court, readiness" (People v. Tavarez, 147 A.D.2d 355, 356, 537 N.Y.S.2d 517). Therefore, this period of 13 days is not chargeable to the People.
On April 15, 1987, the People requested an adjournment, they contend, for two weeks, and the court adjourned it an additional 9 days for the court's convenience. This is disputed by defendant. The minutes of April 15, 1987 are not a part of the Appendix. The People have not met their burden to show that the 9 days should be excluded (People v. Berkowitz, supra, 50 N.Y.2d at 348-349, 428 N.Y.S.2d 927, 406 N.E.2d 783). Therefore, the entire 23 days is chargeable to the People.
On May 8, 1987, the People requested an adjournment. Although the People asked for a two-week adjournment, the court asked for a "speedy trial date" and adjourned the matter to June 26, 1987, specifically noting on the record that the People could move the case up at any time before that date. This placed the burden on the People to come forward when they were ready.
On June 26, 1987, the People first told the court that they filed a statement of readiness with the court on June 24, 1987. However, a statement of readiness is not sufficient unless it appears on the trial court's record. "This requires either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record" (People v. Kendzia, 64 N.Y.2d 331, 337, ...
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