People v. Dushain

• Decision Date: 10 February 1998
• Citation: 247 A.D.2d 234,669 N.Y.S.2d 30
• Parties: , 1998 N.Y. Slip Op. 1355 The PEOPLE of the State of New York, Appellant, v. Carl DUSHAIN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 30

669 N.Y.S.2d 30

247 A.D.2d 234, 1998 N.Y. Slip Op. 1355

The PEOPLE of the State of New York, Appellant, v. Carl DUSHAIN, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Feb. 10, 1998.

Korey E. Kerscher, for Appellant.

Before MILONAS, J.P., and ELLERIN, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Harold Beeler, J.), entered October 17, 1995, which granted defendant's motion to dismiss the indictment pursuant to CPL 30.30, unanimously reversed, on the law and the facts, the motion denied, the indictment reinstated and the matter remanded for further proceedings.

By order of this Court entered July 31, 1997 (M-3620), our decision in this matter, a People's appeal (People v. Dushain, 239 A.D.2d 151, 657 N.Y.S.2d 44), was recalled and vacated, and the appeal held in abeyance, in order to assign appellate counsel for defendant and permit counsel time to submit a respondent's brief on defendant's behalf. Having now received respondent's brief, we adhere to our prior decision as set forth below.

Defendant was arrested on December 10, 1993, and indicted on charges of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. According to the People, and uncontested on the speedy trial motion, they first announced their readiness for trial on June 29, 1994, and were chargeable with 89 days of delay as of March 31, 1995, when the period with which this appeal is concerned commenced.

Apparently unbeknownst to the People, the arresting officer in this case retired from the New York City Police Department on March 30, 1995 and joined the Nassau County Police Department. The case happened to be on the calendar on March 31, 1995, and on that date, in response to the court's inquiry, the People answered ready for trial; for the most part, they stated their readiness on subsequent adjourned dates as well. However, on June 20, 1995, the People advised the court that they had just learned of the officer's job change and requested a two-week adjournment to find out what was necessary to secure his attendance for trial. After another adjournment due to the assigned assistant's vacation, defense counsel informed the court on July 25, 1995 of his intention to file the instant speedy trial motion. The only intervening date that must be noted at this juncture is May 2, 1995, when a bench warrant was issued but stayed until May 9, 1995.

Without specifying any particular adjournments, defendant's 30.30 motion alleged simply that, despite statements of readiness, the People had not actually been ready because the officer was unavailable due to his change in jobs. The prosecutor's papers in response informed the court that the assistant had contacted the Nassau County Police Department and learned that the arresting officer was--and had been at all times--available by subpoena upon at most three or four days notice. The People conceded, however, that a total of 139 days were chargeable to them, including some portions of the time between March 31 and July 25, as well as the week following the July 25th court appearance.

Notwithstanding the prosecutor's representation of the officer's uninterrupted availability, the court granted the speedy trial motion, finding that, with the exception of the week between May 2nd and May 9th noted above, the entire period subsequent to March 31, 1995 was chargeable to the People because they had not known of the officer's new job. This finding added 66 days to the 139 days conceded by the People, bringing the total chargeable time to 205 days, in excess of the 182 days permitted by statute. The court reasoned that because the People "were unaware of the status of their witness, they could not be actually ready to proceed." Thus, despite the announcements of readiness during this...