People v. Battles
| Decision Date | 12 December 1980 |
| Citation | 433 N.Y.S.2d 936,77 A.D.2d 405 |
| Parties | PEOPLE of the State of New York, Respondent, v. Dwight BATTLES, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Rose H. Sconiers, Buffalo, for appellant (Joseph A. Shifflett, Buffalo, of counsel).
Edward C. Cosgrove, Buffalo, for respondent (David Gregory, Buffalo, of counsel).
Before SIMONS, J. P., and HANCOCK, SCHNEPP, CALLAHAN and MOULE, JJ.
Defendant was convicted of three counts of robbery in the first degree, two counts of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the fourth degree. He appeals from a denial of his motion to dismiss the indictment for failure to provide a speedy trial under section 30.30 of the Criminal Procedure Law on the ground that the delay exceeded 180 days.
After reviewing the record, the trial court determined that the period from November 2, 1977, when defendant was arraigned on the original indictment, to November 23, 1977, when a superseding indictment was handed down, would be charged to the People; that because of defendant's omnibus motions, his Wade hearing and his homicide trial, the period from November 23, 1977 to April 11, 1979 would be excluded; that because there was no time excludable from April 11, 1979 to September 19, 1979, this period would be charged to the People; that because the delay was due to defense counsel's request, the period from September 19, 1979 to November 13, 1979 would be excluded; and that because the court gave preference to another case, the period from November 13, 1979 to December 3, 1979 would be excluded. The trial court thereupon computed that 182 days were chargeable to the People and determined that the limit of six months under section 30.30 of the Criminal Procedure Law had not been exceeded.
Defendant contends that of the period running from November 23, 1977 to April 11, 1979, the first five days should have been charged to the People because he was not arraigned on the superseding indictment until November 28, 1977. Defendant asserts that the court incorrectly excluded these five days and, further, that by the court's own calculation, the People were over the limit of six months.
If the People are not ready for trial within six months of commencement of a criminal felony action, the indictment must be dismissed unless the People establish statutory periods of exclusion which justify the delay (People v. Rivera, 64 A.D.2d 815, 816, 407 N.Y.S.2d 296; People v. Cook, 63 A.D.2d 842, 843, 405 N.Y.S.2d 850; People v. Del Valle, 63 A.D.2d 830, 831, 406 N.Y.S.2d 642). It has been held that the limit of six months states a precise cutoff (People v. Dean, 45 N.Y.2d 651, 656, 412 N.Y.S.2d 353, 384 N.E.2d 1277), that a defendant need not demonstrate prejudice resulting from the delay (People v. Hamilton, 46 N.Y.2d 932, 933-934, 415 N.Y.S.2d 208, 388 N.E.2d 345) and that a de minimis delay of several days past the six months still violates the statute (People v. Clary, 71 A.D.2d...
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People v. Jones
...charged by Criminal Term to the People (CPL 30.30, subd. 4, par. People v. Stanton, 71 A.D.2d 932, 419 N.Y.S.2d 717; People v. Battles, 77 A.D.2d 405, 433 N.Y.S.2d 936). Similarly, it was error to charge the People with 57 days of delay in furnishing completed police laboratory reports to t......
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People v. Cortes
...215; People v. Jones, 105 A.D.2d 179, 483 N.Y.S.2d 345, affd. 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231; People v. Battles, 77 A.D.2d 405, 407, 433 N.Y.S.2d 936). The discrepancy in this instance between the time the People had to become ready in Cortes and the time they had to becom......
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People v. Allen
...speedy trial, the delay is measured in terms of calendar months (see, People v. Rhee, 111 A.D.2d 655, 490 N.Y.S.2d 215; People v. Battles, 77 A.D.2d 405, 433 N.Y.S.2d 936; see also, People v. Jones, 105 A.D.2d 179, 483 N.Y.S.2d 345, aff'd 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231). I......
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People v. Blyden
...June 21, 1977 to August 23, 1977 and November 5, 1977 to March 8, 1978, a period of six months and five days (see People v. Battles, 77 A.D.2d 405, 407, 433 N.Y.S.2d 936). Of these contested periods, at least the time from November 5-14, may not be charged to the People because it resulted ......