People v. Bigwarfe, 104897

• Citation: 9 N.Y.S.3d 448,128 A.D.3d 1170,2015 N.Y. Slip Op. 04166
• Decision Date: 14 May 2015
• Docket Number: 104897
• Parties: The PEOPLE of the State of New York, Respondent, v. Troy D. BIGWARFE, Appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1170

9 N.Y.S.3d 448

2015 N.Y. Slip Op. 04166

The PEOPLE of the State of New York, Respondent

v.Troy D. BIGWARFE, Appellant.

104897

Supreme Court, Appellate Division, Third Department, New York.

May 14, 2015.

Rosemary R. Philips, Canton, for appellant.

Mary E. Rain, District Attorney, Canton (Patricia C. Campbell of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY and LYNCH, JJ.

Opinion

LYNCH, J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered February 14, 2012, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree (two counts).

On January 21, 2010, defendant was charged in a felony complaint with a single count of criminal sale of a controlled substance in the third degree, based on the sale of one half of an 80 milligram Oxycontin pill to a police informant in August 2009. Thereafter, on July 29, 2010, defendant was indicted and charged with three counts of criminal sale of a controlled substance in the third degree: the first count was based on the August 5, 2009 event underlying the felony complaint, and the remaining counts were based on two sales of the same amount of Oxycontin to the same informant on August 24, 2009. The People also announced their readiness for trial on July 29, 2010.

Defendant thereafter moved to dismiss the indictment based on statutory speedy trial grounds. The People conceded that count 1 was untimely, but otherwise opposed the motion. County Court initially granted the motion, but, upon the People's letter request to reconsider, ultimately reinstated counts 2 and 3 of the indictment. Following a jury trial, defendant was convicted on both counts and was sentenced to concurrent prison terms of four years on each count followed by two years of postrelease supervision. Defendant appeals.

Upon the filing of a felony complaint commencing a criminal action, the People must be ready for trial within six months (see CPL 30.30[1][a] ; People v. Nelson, 68 A.D.3d 1252, 1253, 890 N.Y.S.2d 189 [2009] ). A criminal action is commenced upon the filing of the first accusatory instrument (see CPL 1.20[16] [a] ) and “includes the filing of all further accusatory instruments directly derived from the initial one” (CPL 1.20[16][b] [emphasis added]; accord People ex rel. Greenstein v. Sheriff of Schenectady County, 220 A.D.2d 190, 192, 645 N.Y.S.2d 339 [1996] ). Here, the issue distills to whether counts 2 and 3 of the indictment are directly derived from the felony complaint as part of the same criminal transaction (see People v. Lowman, 103 A.D.3d 976, 977, 959 N.Y.S.2d 568 [2013] ). If so, the speedy trial time frame would relate back to the filing of the felony complaint; if not, that time period would be triggered by the indictment (see id.; People v. Nelson, 68 A.D.3d at 1254, 890 N.Y.S.2d 189 ; People v. Dearstyne, 230 A.D.2d 953, 955, 646 N.Y.S.2d 1000 [1996], lv. denied 89 N.Y.2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 295 [1996] ).

As a threshold point, citing to CPL 210.20(4), defendant maintains that, after dismissing the indictment, County Court lacked authority to reconsider the matter simply on the basis of the People's letter request. We disagree. CPL 210.20(4) speaks to the court's authority to authorize the People to resubmit a charge to the grand jury, but only where the indictment is dismissed on certain grounds that do not include a speedy trial violation (see CPL 210.20 [1 ][g]; [4] ). The question here, however, is whether the court retains inherent authority to rectify a prior error in dismissing an indictment, and it is our view that the court has such authority (see People v. Rosa, 265 A.D.2d 167, 167, 696 N.Y.S.2d 138 [1999], lv. denied 94 N.Y.2d 884, 705 N.Y.S.2d 16, 726 N.E.2d 493 [2000] ; People v. Clarke, 203 A.D.2d 916, 916, 611 N.Y.S.2d 385 [1994], lv. denied 83 N.Y.2d 965, 616 N.Y.S.2d 18, 639 N.E.2d 758 [1994] ; see also People v. Lynch, 162 A.D.2d 134, 134, 556 N.Y.S.2d 80 [1990], lv. denied 76 N.Y.2d 941, 563 N.Y.S.2d 71, 564 N.E.2d 681 [1990] ). Although no formal reargument motion was made, which would have been preferable, the letter request alerted the court to the error, and the court conducted a hearing before finalizing the reinstatement of counts 2 and 3. Since defendant was given a full opportunity to be heard on the reinstatement request, we perceive no error.

The further question is whether the events alleged in counts 2 and 3 of the indictment are part of the same criminal transaction as count 1 (see CPL 40.10[2][b] ). Although each sale involved the identical amount of Oxycontin and the same participants, we find no error in County Court...