People v. Chapman

• Decision Date: 17 August 1992
• Citation: 185 A.D.2d 892,587 N.Y.S.2d 379
• Parties: The PEOPLE, etc., Appellant, v. Christopher CHAPMAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 379

587 N.Y.S.2d 379

185 A.D.2d 892

The PEOPLE, etc., Appellant, v. Christopher CHAPMAN, Respondent.

Supreme Court, Appellate Division,

Second Department.

Aug. 17, 1992.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen and Leonard Joblove, of counsel), for appellant.

Philip L. Weinstein, New York City (Joseph O. Holmes, of counsel), for respondent.

Before MANGANO, P.J., and THOMPSON, ROSENBLATT and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County (Goldstein, J.), dated March 8, 1991, which granted the defendant's motion to dismiss the indictment pursuant to CPL 30.30.

ORDERED that the order is affirmed.

The People contend that the Supreme Court erroneously dismissed the indictment because the time chargeable to them was well within the six-month statutory time limit, which in this case totalled 181 days. We disagree.

The People concede that the court properly charged them with 112 days of delay. They also concede that they are properly chargeable with the 11 days between the filing of the initial indictment on May 31, 1990, to the arraignment on that indictment on June 11, 1990 (see, People v. Correa, 77 N.Y.2d 930, 569 N.Y.S.2d 601, 572 N.E.2d 42). Thus, the People claim that they are only properly chargeable with a total of 123 days of delay. We find that the 39-day period between the filing of the second indictment on December 6, 1990, and the arraignment on that indictment on January 14, 1991, is also chargeable to the People (see, People v. Correa, supra ).

We also find that the court properly charged the People with the 21-day adjournment following the defendant's June 11, 1990, arraignment on the initial indictment. Contrary to the People's contentions, the record establishes neither that the defendant consented to that adjournment nor that he wanted an adjournment for the purpose of negotiating a plea (see, People v. Liotta, 79 N.Y.2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82; see also, People v. Correa, 161 A.D.2d 391, 555 N.Y.S.2d 715, aff'd, 77 N.Y.2d 930, 569 N.Y.S.2d 601, 572 N.E.2d 42, supra).

However, the court erroneously charged the People with 16 days which elapsed during the course of the People's motion to reargue the dismissal of the initial indictment. That period of time should have been excluded under CPL 30.30(4)(a) (see, People v. Pomales, 159 A.D.2d 451, 553 N.Y.S.2d 131). The People also contend that the court should have excluded the 58-day period from October 9, 1990, when the motion to reargue...