People v. Collins

• Decision Date: 01 April 1983
• Citation: 93 A.D.2d 981,461 N.Y.S.2d 656
• Parties: PEOPLE of the State of New York, Appellant, v. Kent COLLINS, Gerald Montague and Willie Montague, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 656

461 N.Y.S.2d 656

93 A.D.2d 981

PEOPLE of the State of New York, Appellant, v. Kent COLLINS, Gerald Montague and Willie Montague, Respondents.

Supreme Court, Appellate Division Fourth Department.

April 1, 1983.

The Supreme Court, Onondaga County, Gorman, J., granted defendants' oral pretrial motion to dismiss indictment on grounds that defendants were denied right to speedy trial, and People appealed. The Supreme Court, Appellate Division, held that: (1) trial court erred in granting defendants' oral motion to dismiss, and (2) there was no deprivation of defendants' constitutional right to speedy trial.

Order reversed, motion denied and indictment reinstated and matter remitted.

Richard A. Hennessy, Jr. by John Cirando, Syracuse, for appellant.

William D. Weisberg, P.C. by Norman Hatt, Syracuse, for respondent Collins.

Gerald T. Barth by James Dungan, Syracuse, for respondents Gerald and Willie Montague.

Before DILLON, P.J., and CALLAHAN, DOERR, BOOMER and SCHNEPP, JJ.

MEMORANDUM:

The People appeal from an order granting defendants' oral pretrial motion to dismiss the indictment on the grounds that defendants were denied their right to a speedy trial pursuant to CPL 30.30. The court erred in granting defendants' oral motion to dismiss. A motion to dismiss an indictment for failure to grant a defendant a speedy trial must be made in writing and upon reasonable notice to the People (CPL 210.45; People v. Marrero, 85 A.D.2d 610, 444 N.Y.S.2d 679; People v. Weinberg, 59 A.D.2d 727, 398 N.Y.S.2d 360; People v. Dedmon, 53 A.D.2d 646, 384 N.Y.S.2d 846). In any event, the record does not support dismissal of the indictment under either CPL 30.30 (statutory ready for trial rule) or CPL 30.20 (constitutional right to speedy trial).

The record clearly establishes that the People announced their readiness for trial on the record within the statutory six month period and thus satisfied their obligation under CPL 30.30 (People v. Giordano, 81 A.D.2d 1003, 440 N.Y.S.2d 110, affd. 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d 1333). The criminal action herein is deemed to have commenced for the purpose of CPL 30.30 on June 26, 1980, the date when the accusatory instruments were filed (People v. Lomax, 50 N.Y.2d 351, 355-356, 428 N.Y.S.2d 937, 406 N.E.2d 793). Defendants were indicted on December 16, 1980 and arraigned on December 22, 1980, at which time they were granted adjournments to make pretrial motions. The period from December 22, 1980 through March 3, 1981 for determination of pretrial motions is chargeable to defendants. The People announced their readiness for trial on February 20, 1981 and again on March 3, 1981. Once the District Attorney makes a record announcement of his readiness for trial, the operational effect of CPL 30.30 is exhausted (People v. Brothers, 50 N.Y.2d 413, 417, 429 N.Y.S.2d 558, 407 N.E.2d 405; People v. Giordano, supra). Any delay after the People announced their readiness for trial was attributable to court congestion which does not entitle defendants to dismissal under CPL 30.30 (People v. Brothers, supra).

In reviewing the alleged abridgement of defendants' constitutional right to a speedy trial pursuant to CPL 30.20, we must consider the entire period from arrest to trial to determine whether or not the delay is improper (People v. Johnson, 38 N.Y.2d 271, 379 N.Y.S.2d 735, 342 N.E.2d 525; People v. Watts, 78 A.D.2d 1008, 433 N.Y.S.2d 669). There is no per se period beyond which a criminal prosecution may not be pursued (People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303). Each case requires "a sensitive weighing process of the diversified factors" (People v. Taranovich, supra, p. 445, 373 N.Y.S.2d 79, 335 N.E.2d 303). The factors which must be balanced to determine whether or not a defendant's constitutional right to a speedy trial has been abridged are: "(1) the extent of the delay; (2) the reason for the...