People v. Cook
| Decision Date | 26 May 1978 |
| Citation | 63 A.D.2d 842,405 N.Y.S.2d 850 |
| Parties | PEOPLE of the State of New York, Respondent, v. Rosa McClendon COOK a/k/a Rose McClendon a/k/a Rose Belle, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Nathaniel A. Barrell, Buffalo, for appellant by Henrietta M. Wolfgang, Buffalo.
Edward C. Cosgrove, Dist. Atty., Buffalo, for respondent by Hugh Kelly, Buffalo.
Before MOULE, J. P., and CARDAMONE, SIMONS, HANCOCK and DENMAN, JJ.
Defendant appeals from a judgment of conviction entered after a plea of guilty to attempted arson in the fourth degree, alleging that she was denied her right to a speedy trial pursuant to CPL 30.30(1)(a) and that the indictment should have been dismissed.
Following her arraignment on this indictment on June 4, 1976 defendant was returned to the Federal Correctional Institution at Alderson, West Virginia, to resume serving a sentence on unrelated federal charges. She was not returned to New York until January 22, 1977, more than six months after arraignment. Following her return an additional period in excess of six months elapsed prior to her entry of a plea.
CPL 30.30 mandates dismissal of the indictment if the People are not ready for trial within six months of the commencement of the criminal proceedings and are unable to establish periods of exclusion under the statute (People v. Washington, 43 N.Y.2d 772, 401 N.Y.S.2d 1007, 372 N.E.2d 795; People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331; People v. Blackford, App.Div., 404 N.Y.S.2d 469, decided April 14, 1978; People v. Bellach, 58 A.D.2d 613, 395 N.Y.S.2d 673). The record before us is incomplete with respect to the efforts by the District Attorney to have the defendant returned for trial and with respect to his efforts to bring her to trial following her return to the jurisdiction. The defendant moved for dismissal pursuant to CPL 30.30(1)(a) and the motion was denied without findings or conclusions concerning the various periods in controversy. In view of the proscriptive limits of CPL 30.30(1)(a), the burden is on the People to show their readiness for trial within the six-month period after deducting statutorily excludable periods under CPL 30.30(4) (People v. Washington, supra; People v. Sturgis, supra; People v. Bellach, supra). Consequently the case is remanded for further proceedings (see People v. McLaurin, 38 N.Y.2d 123, 378 N.Y.S.2d 692, 341 N.E.2d 250; People v. Bellach, supra).
Case Held, decision...
To continue reading
Request your trial
-
People v. Russo
...with CPL 30.30 (subd. 4) (see People v. Williams, supra; People v. Del Valle, 63 A.D.2d 830, 406 N.Y.S.2d 642; People v. Cook, 63 A.D.2d 842, 405 N.Y.S.2d 850). We also note that the trial court improperly charged the People with the period of delay from October 9, 1979 to November 5, 1979 ......
-
People v. Battles
...statutory periods of exclusion which justify the delay (People v. Rivera, 64 A.D.2d 815, 816, 407 N.Y.S.2d 296; People v. Cook, 63 A.D.2d 842, 843, 405 N.Y.S.2d 850; People v. Del Valle, 63 A.D.2d 830, 831, 406 N.Y.S.2d 642). It has been held that the limit of six months states a precise cu......
-
People v. Williams
...and make appropriate findings in accordance with CPL 30.30(4) (People v. DelValle, 63 A.D.2d 830, 406 N.Y.S.2d 642; People v. Cook, 63 A.D.2d 842, 405 N.Y.S.2d 850). Case held, decision reserved and matter remitted to Monroe County Court for a ...
-
People v. Clary
...establish statutory periods of exclusion which justify the delay (People v. Rivera, 64 A.D.2d 815, 407 N.Y.S.2d 296; People v. Cook, 63 A.D.2d 842, 405 N.Y.S.2d 850; People v. DelValle, 63 A.D.2d 830, 406 N.Y.S.2d 642). On the facts of this case none of the delay is chargeable to the defend......