People v. Brown

• Decision Date: 08 July 1993
• Citation: 600 N.Y.S.2d 53,195 A.D.2d 310
• Parties: The PEOPLE of the State of New York, Appellant, v. Alan BROWN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 53

600 N.Y.S.2d 53

195 A.D.2d 310

The PEOPLE of the State of New York, Appellant, v. Alan BROWN, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

July 8, 1993.

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, ROSS and ASCH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Alfred Kleiman, J.), dated May 12, 1992, which dismissed Indictment Number 3684/91 charging the defendant with four counts of grand larceny in the fourth degree, pursuant to CPL 30.30, unanimously reversed, on the law and the facts, and Indictment Number 3684/91 is hereby reinstated.

It is well settled that pursuant to CPL 30.30(1)(a), (3)(b) and (4) the People must be ready for trial within six months (180 days) plus any periods of excludable time, from the date that the criminal proceeding against the defendant began. In this case it is not disputed that the criminal proceeding against this defendant began with his arraignment on the felony complaint on February 12, 1991. In all the trial court charged 230 days of delay to the People.

The trial court found that of the 56 days that elapsed from June 7, 1991 to August 2, 1991, 42 were chargeable to the People. On June 7, 1991 the court granted the defendant's Wade motion to the extent of ordering a hearing. Defense counsel requested that the hearing be set down for August 2, 1991. While defense counsel initially asked for July 12, 1991 the Court offered counsel more time. The matter was then adjourned to August 2, 1991 with the Court noting that the adjournment was "on consent". Upon determination of the CPL 30.30 motion the court improperly determined that only 14 days of the total 56 were excludable as a reasonable amount of time for the People to prepare for the hearing. The court's reliance upon People v. Green, 90 A.D.2d 705, 455 N.Y.S.2d 368 was improper as the circumstances herein are distinguishable. The adjournment in this case was clearly consented to by defense counsel (cf., People v. Liotta, 79 N.Y.2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82), and was really occasioned by defendant's own motion practice. Furthermore, the fact that the trial court actually encouraged defense counsel to seek additional time should not be minimized. There was no basis for the trial court to have determined that only 14 days of the 56 day adjournment were excludable. Consequently 42 days should be subtracted from the trial court's total.

The 7 day period from August 2, 1991 to August 9, 1991 should also have been excluded because the matter was adjourned by the court sua sponte since the judge assigned would be on vacation. The unavailability of the court due to vacation or for its own convenience is not chargeable to the People; CPL 30.30 addresses prosecutorial readiness, not court readiness (People v. Tavarez, 147 A.D.2d 355, 356, 537 N.Y.S.2d 517 lv. denied 73 N.Y.2d 1022, 541 N.Y.S.2d 777, 539 N.E.2d 605; People v. Correa, 161 A.D.2d 391, 392, 555 N.Y.S.2d 715 affd., 77 N.Y.2d 930, 569 N.Y.S.2d 601, 572 N.E.2d 42).

The People concede that on January 22, 1992 they answered not ready. However, defense counsel also failed to appear in court. The matter was then adjourned until January 31, 1992 (9 days)....