People v. Anderson

• Decision Date: 18 December 1984
• Citation: 105 A.D.2d 38,482 N.Y.S.2d 745
• Parties: The PEOPLE of the State of New York, Appellant, v. Frank ANDERSON, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 745

482 N.Y.S.2d 745

105 A.D.2d 38

The PEOPLE of the State of New York, Appellant, v. Frank ANDERSON, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Dec. 18, 1984.

Lisabeth Harrison, New York City, of counsel (William E. Hellerstein, New York City, attorney), for defendant-respondent.

Steven Chananie, New York City, of counsel (Norman Barclay, New York City, with him on brief; Robert M. Morgenthau, Dist. Atty., New York City, attorney), for appellant.

Before SANDLER, J.P., and ASCH, SILVERMAN, FEIN and KASSAL, JJ.

FEIN, Justice.

Defendant and his accomplice were arrested on October 21, 1981 for selling heroin. Arraigned the next day, they were indicted on December 3 of that year on two counts of criminal possession of a controlled substance third degree and one count each of criminal possession of a controlled substance in the fourth and seventh degrees. On June 7, 1982, after several adjournments, in part due to defense motions, the People answered "ready for trial". Defendant and his accomplice then absconded in September 1982; defendant was arrested on a bench warrant in December 1983. New counsel was assigned.

On February 3, 1984 it came to the attention of the district attorney that a police officer had testified at defendant's parole revocation hearing two years earlier. On February 6 the parties agreed upon an adjournment to permit the People to obtain the minutes of that hearing. On April 5, 1984, taking the position that the police officer's testimony at the parole revocation hearing was Rosario material which the People were obliged to obtain, Criminal Term dismissed the indictment for failure to proceed to trial in a timely fashion.

An indictment for the crimes here involved must be dismissed if the People are not ready for trial within six months after commencement of the action (CPL 30.30 subd. 1 210.20 subd. 1). Defendant maintains that the People indicated an unreadiness for trial when it was revealed on February 6, 1984 that essential material still had to be obtained, and that this, in effect, negated the People's earlier statement of readiness on June 7, 1982. The People contend that inasmuch as they had only just become aware of the existence of the officer's testimony at the parole revocation hearing, this revelation did not invalidate their earlier statement of readiness for trial. We agree.

When the People are ready to proceed to trial, they must communicate this readiness to the court on the record (People v. Hamilton, 46 N.Y.2d 932, 415 N.Y.S.2d 208, 388 N.E.2d 345). Once such an announcement is effectively made on the record, the district attorney's obligation under CPL 30.30 subd. 1is satisfied (People v. Giordano, 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d 1333; see People v. Brothers, 50 N.Y.2d 413, 417, 429 N.Y.S.2d 558, 407 N.E.2d 405). In People v. Morrell, 97 A.D.2d 703, 468 N.Y.S.2d 127 the People challenged that part of a CPL 30.30 motion relying on 34 days of delay which occurred after the People's statement of readiness for trial. These 34 days, 14 attributable to the People's untimely mailing of an answer to the CPL 30.30 motion, and 20 attributable to procuring the appearance of an out-of-town witness, actually post-dated defendant's motion to dismiss the indictment, although predating the ultimate submission date for the motion. We ruled that "the critical issue in determining a CPL 30.30 motion is how many days of unjustifiable delay are attributable to the People before their announcement that they are ready for trial." (Id.) The People...