People v. Callender
| Decision Date | 15 December 1981 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Roger Anthony CALLENDER, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Term |
Julia Pamela Heit, P. C., New York City, for defendant-appellant.
Robert M. Morgenthau, Dist. Atty. (Vivian Berger and Susan Corkery, New York City, of counsel), for respondent.
Before HUGHES, J. P., and RICCOBONO and ASCH, JJ.
Judgment of conviction rendered May 12, 1980 (H. Altman, J. on motion to dismiss; McBrien, J. with jury, at trial and sentence) is affirmed.
We agree with H. Altman, J. (People v. Callender, 101 Misc.2d 958, 422 N.Y.S.2d 611) that the time which elapsed from arraignment to the conversion of a misdemeanor complaint to an information (CPL 170.65, 100.10 subd. 4) should not be charged to the People in computing the delay in derogation of defendant's right to a speedy trial (CPL 30.30). Since a misdemeanor action proceeds in its pretrial stages in the same fashion regardless of whether the accusatory instrument is an information or a complaint, the failure of the People to convert from a complaint to an information at the inception of the proceeding will not generally contribute to delay or impede the People's ability to answer ready for trial. Conversion of a complaint to an information should take place at a reasonable time before trial (People v. Alberi, App.Div., 421 N.Y.S.2d 504, 1979), which has been held to include the day prior to trial (see People v. DeFeo, 77 Misc.2d 523, 524, 355 N.Y.S.2d 905; People v. Zagorsky, 73 Misc.2d 420, 425, 341 N.Y.S.2d 791; People v. Gutterson, 93 Misc.2d 1105, 403 N.Y.S.2d 998). In the case at bar, extensive delays in proceeding to trial resulted from adjournments required by and chargeable against defendant. Delays occasioned by the defendant may not be included in computing whether the statutory period has run (People v. Sturgis, 38 N.Y.2d 625, 626, 381 N.Y.S.2d 860, 345 N.E.2d 331, CPL 30.30).
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