People v. O'Neal

Decision Date27 February 1984
Citation99 A.D.2d 844,472 N.Y.S.2d 449
PartiesThe PEOPLE, etc., Appellant, v. Menelik O'NEAL, Respondent.
CourtNew York Supreme Court — Appellate Division

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 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 defendant in a criminal court (CPL 1.20, subd. 17), which by definition includes the filing of an indictment (CPL 1.20, subd. 1).

Where a defendant moves to dismiss an indictment on speedy trial grounds, he bears the burden of proving by a preponderance of the evidence that he was deprived of his right to a speedy trial (CPL 210.45, subd. 7). Once a defendant has shown the existence of a delay greater than six months, the prosecution assumes the burden of demonstrating that the time periods in question are excludable (see People v. Brothers, 50 N.Y.2d 413, 429 N.Y.S.2d 558, 407 N.E.2d 405; People v. Berkowitz, 50 N.Y.2d 333, 348-349, 428 N.Y.S.2d 927, 406 N.E.2d 783).

Calendar congestion or the lack of court facilities is neither an excuse nor a relevant factor in a CPL 30.30 situation and does not qualify as an excludable "exceptional circumstance" (People v. Brothers, supra; CPL 30.30, subd. 4, par. [g] ). The speedy trial statute mandates that the prosecution be ready to proceed to trial, not that court facilities must be available (People ex rel. Franklin v. Warden, Brooklyn House of Detention For Men, 31 N.Y.2d 498, 501-502, 341 N.Y.S.2d 604, 294 N.E.2d 199). Succinctly stated:

"[O]nce the District Attorney had effectively announced his readiness for trial the operational effect of CPL 30.30 was exhausted. If the defendant's trial were thereafter delayed on account of court congestion, he would not be entitled to dismissal under CPL 30.30. His only remedy would lie by way of proof that he had been denied his constitutional right to a speedy trial" (People v. Brothers, supra, p. 417, 428 N.Y.S.2d 927).

A general claim that the People were excusably delayed by the need to conduct further investigation into the crime will not result in excludable time (People v. Washington, 43 N.Y.2d 772, 773-774, 401 N.Y.S.2d 1007, 372 N.E.2d 795). Moreover, the right to a speedy trial as guaranteed by CPL 30.30 relates to prosecutorial readiness and is not in any way dependent upon prejudice to the defendant or the defendant's readiness to proceed. Additionally, the People's readiness to proceed to trial must be communicated to the court and placed on the record. It is insufficient for the People to first inform the court of their alleged readiness to prosecute in an affidavit submitted in opposition to a defendant's motion to dismiss the indictment (People v. Hamilton, 46 N.Y.2d 932, 933-934, 415 N.Y.S.2d 208, 388 N.E.2d 345; Bellacosa, Practice Commentary, McKinney's Cons Laws of N.Y., Book 11A, CPL 30.30, pp. 151-152).

In the instant case, the action was commenced by the filing of Indictment No. 3096/80 on October 14, 1980. Defendant's motion to dismiss the indictment was returnable on October 16, 1981, more than a year after the commencement of the action. The action had not yet proceeded to trial. The People thus bear the burden of demonstrating that some of the time intervals involved are excludable (People v. Brothers, supra; People v. Berkowitz, supra ).

Specifically, the People contend that the following time periods allegedly charged to them should have been excluded: (1) the 58-day period after the prosecution announced its readiness for trial; (2) the 49-day period attributable to defendant's delay in serving motions; (3) the 18-day adjournment requested by defendant on February 13, 1981; and (4) the 24-day period between the filing of the indictment and the first court date after the arraignment.

Notwithstanding the People's contention that they announced their readiness for trial on April 29, 1981, the record reflects no such announcement. Despite their failure to have previously communicated their readiness to the court, the People now rely upon the following statement from defense counsel's affirmation in support of the motion to dismiss the indictment: "The People did not answer ready until April 24, 1981, a period of 45...

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15 cases
  • People v. Walton
    • United States
    • New York Supreme Court
    • August 12, 1987
    ...(subd 4) contains no provision for the mandatory exclusion of all prearraignment or court-ordered delays." (People v. O'Neal, 99 A.D.2d 844, 846, 472 N.Y.S.2d 449 [2d Dept., 1984].) Of course, as discussed above, the Second Department has now settled the issue regarding the excludability of......
  • People v. Jones
    • United States
    • New York Supreme Court — Appellate Division
    • December 24, 1984
    ...this was a case where the People at one point were ready, and, thereafter, were no longer ready for trial". Finally, in People v. O'Neal, 99 A.D.2d 844, 472 N.Y.S.2d 449, the People argued that although there was no announcement of their readiness for trial on the record, the defendant's co......
  • People v. Gaggi
    • United States
    • New York Supreme Court — Appellate Division
    • August 13, 1984
    ...date, to which the defendant also failed to object (September 20, 1982--October 12, 1982), are all excludable (see People v. O'Neal, 99 A.D.2d 844, 472 N.Y.S.2d 449; People v. Smith, 97 A.D.2d 485, 468 N.Y.S.2d 129, supra; People v. Gadsden, NYLJ, Jan. 21, 1982, p. 13, col. 3). By virtue of......
  • People v. Weeks
    • United States
    • New York Supreme Court — Appellate Division
    • January 22, 1987
    ...after the superior court information was filed on May 7, 1982 is insufficient to establish the People's readiness (see, People v. O'Neal, 99 A.D.2d 844, 472 N.Y.S.2d 449; People v. Santiago, 96 A.D.2d 720, 465 N.Y.S.2d 364). The period in question here must, therefore, be calculated from th......
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