People ex rel. Ferguson v. Campbell

• Decision Date: 22 August 1991
• Citation: 573 N.Y.S.2d 539,175 A.D.2d 959
• Parties: The PEOPLE of the State of New York ex rel. Harold L. FERGUSON, Appellant, v. James CAMPBELL, as Sheriff of Albany County, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 539

573 N.Y.S.2d 539

175 A.D.2d 959

The PEOPLE of the State of New York ex rel. Harold L.

FERGUSON, Appellant, v. James CAMPBELL, as Sheriff of Albany County, Respondent.

Supreme Court, Appellate Division,

Third Department.

Aug. 22, 1991.

Harold L. Ferguson, in pro per.

Sol Greenberg, Dist. Atty. (George H. Barber, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and WEISS, YESAWICH, CREW and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County (Keegan, J.), entered June 10, 1991, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, after a hearing.

Petitioner commenced this habeas corpus proceeding claiming that the indictments against him should be dismissed and he should therefore be released from jail because he has not been tried within the six-month period of CPL 30.30(1)(a). As County Court noted, however, the statute does not require that a defendant be tried within the six-month period, only that the People state their readiness for trial within that time. Court congestion cannot be used to penalize the People if the trial itself is delayed (see, People v. Kendzia, 64 N.Y.2d 331, 337-338, 486 N.Y.S.2d 888, 476 N.E.2d 287; People ex rel. Franklin v. Warden, 31 N.Y.2d 498, 501-504, 341 N.Y.S.2d 604, 294 N.E.2d 199; People v. Giordano, 81 A.D.2d 1003, 440 N.Y.S.2d 110, affd., 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d 1333). The record in this case indicates that the People announced their readiness for trial within six months of the filing of the accusatory instruments (see, People v. Rhee, 111 A.D.2d 655, 656, 490 N.Y.S.2d 215) and, therefore, there has been compliance with the requirements of CPL 30.30(1)(a) (see, People v. Giordano, 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d 1333; People v. Battles, 77 A.D.2d 405, 407, 433 N.Y.S.2d 936; see also, General Construction Law § 30). Finally, there is no indication in the record that the People have not been continually ready for trial since that time (see, People v. Rhee, supra, 111 A.D.2d at 656, 490 N.Y.S.2d 215; compare, People v. Anderson, 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231). County Court properly determined that petitioner was not entitled to dismissal of the indictments under CPL 30.30.

ORDERED that the judgment is affirmed, without costs.