99 A.D.2d 844, People v. O'Neal

Citation:99 A.D.2d 844, 472 N.Y.S.2d 449
Party Name:People v. O'Neal
Case Date:February 27, 1984
Court:New York Supreme Court Appelate Division, Second Department
 
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Page 844

99 A.D.2d 844

472 N.Y.S.2d 449

The PEOPLE, etc., Appellant,

v.

Menelik O'NEAL, Respondent.

Supreme Court of New York, Second Department

February 27, 1984.

[472 N.Y.S.2d 450] Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Lois M. Raff and Brian D. Foley, Asst. Dist. Attys., of counsel), for appellant.

Before TITONE, J.P., and O'CONNOR, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County, entered November 18, 1981, which granted defendant's motion to dismiss the underlying indictment on the ground that he had been denied a speedy trial pursuant to section 30.30 of the CPL.

Order affirmed.

By Kings County Indictment No. 3096/80, defendant was charged with three counts of robbery in the first degree, two counts of robbery in the second degree, two counts of assault in the second degree, criminal possession of a weapon in the second [472 N.Y.S.2d 451] degree and two counts of criminal use of a firearm in the first degree. It was alleged that defendant, while acting in concert with others, stole a stereo from one Nathan Coleman. In the course of the crime and the immediate flight therefrom, defendant allegedly displayed a handgun.

Defendant was arrested for robbery in the first degree on September 11, 1980. The indictment in question was thereupon filed on October 14. Defendant was arraigned before Justice THOMPSON on October 23, 1980, at which time he pleaded not guilty by "directions of [the] court". By notice of motion dated October 9, 1981, defendant sought dismissal of the indictment on the ground that he had been denied his statutory right to a speedy trial. A hearing on the motion was held on October 19, 1981, with the court finding 235 days attributable to the People. Therefore, the motion was granted by order entered November 18, 1981. Although the court's and the District Attorney's files had been ordered sealed after the case was dismissed, the court directed that the files be made available to the People for the purpose of prosecuting their appeal from the order dismissing the indictment.

CPL 30.30 (subd. 1, par. [a] ) mandates the dismissal of charges against a defendant on the basis of denial of his right to a speedy trial where the People are not ready for trial within "six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony". A criminal action is commenced with the filing of an accusatory instrument against a...

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