175 A.D.2d 193, People v. Zenon

Citation:175 A.D.2d 193, 572 N.Y.S.2d 77
Party Name:People v. Zenon
Case Date:July 08, 1991
Court:New York Supreme Court Appelate Division, Second Department
 
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175 A.D.2d 193

572 N.Y.S.2d 77

The PEOPLE, etc., Appellant,

v.

Santo ZENON, Respondent.

Supreme Court of New York, Second Department

July 8, 1991.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Seth M. Lieberman and Lindsay Brown, of counsel), for appellant.

Philip L. Weinstein, New York City (Carol Santangelo, of counsel), for respondent.

Before MANGANO, P.J., and LAWRENCE, EIBER and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County (Slavin, J.), dated August 1, 1989, which granted the defendant's motion to dismiss the indictment pursuant to CPL 30.30.

ORDERED that the order is affirmed.

The People contend that the Supreme Court erroneously dismissed the indictment in this case because the time properly chargeable to them was within the permitted [572 N.Y.S.2d 78] six calendar months, which herein totalled 184 days. We disagree.

We find that the 17 days between the initial indictment on July 10, 1987, and the arraignment held on July 27, 1987, as well as the 30 days between the filing of the second indictment on January 17, 1989 and the defendant's arraignment on February 16, 1989, are chargeable to the People (see, People v. Correa, 77 N.Y.2d 930, 569 N.Y.S.2d 601, 572 N.E.2d 42). We reject the People's contention that they were ready for trial on January 20, 1989. They could not proceed to trial until the defendant had been arraigned on the indictment. Moreover, since the defendant was incarcerated, and therefore, was within the People's control and was not produced by them on January 20th, their assertion that they were ready for trial on that date is without merit (cf., People v. Bryant, 153 A.D.2d 636, 544 N.Y.S.2d 661).

Additionally, prior to the dismissal of the original indictment, after the People had announced their readiness for trial, the People appeared in court stating that they could not proceed since they did not have a file. Accordingly, the 24 days attributable to this delay, which encompassed the period from December 15, 1987, through January 8, 1988, is chargeable to them. Moreover, we find that the period from July 26,

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1988, through October 19, 1988, a total of 85 days, wherein a codefendant properly joined for trial with the defendant was without counsel, was attributable to the fault of the court, and therefore, chargeable to the...

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