People v. Eckert

• Decision Date: 12 January 1983
• Citation: 458 N.Y.S.2d 494,117 Misc.2d 504
• Parties: PEOPLE of the State of New York, v. Darwin ECKERT, Defendant.
• Court: New York City Court

Page 494

458 N.Y.S.2d 494

117 Misc.2d 504

PEOPLE of the State of New York, v. Darwin ECKERT, Defendant.

City Court of Syracuse Criminal Division.

Jan. 12, 1983.

Richard A. Hennessy, Jr., Onondaga County Dist. Atty., for the People; Ralph D. Tortora, III, Asst. Dist. Atty., of counsel.

Frank H. Hiscock Legal Aid Society, Syracuse, for defendant; Sean Denvir, Syracuse, of counsel.

DECISION

LOUIS H. MARIANI, Judge.

Defendant, here charged with a violation of Penal Law § 240.25, moves for, inter alia, dismissal of the charge against him on the ground that his statutory right to a speedy trial within 30 days from commencement of this prosecution has been violated. [CPL § 30.30(1)(d) ]

Both the District Attorney and Defense Counsel have submitted written arguments for the Court's consideration of the motion. Given the general agreement as to the facts and dates pertaining to this prosecution, we address the related points of law raised in the submitted papers as dispositive of Defendant's motion.

The factual framework is as follows: On August 23, 1982, the alleged, complained of conduct by the Defendant occurred. On September 1, 1982, an accusatory instrument was signed by the Police Officer involved in this prosecution. On September 18, 1982 a criminal summons was issued by the Court directing the Defendant to appear for arraignment on October 28, 1982. The Defendant was served with the summons on October 22, 1982, and appeared in Court for arraignment on November 1, 1982. Two pretrial conferences were had and Defendant's instant motion was returnable December 3, 1982.

The Defendant would have this Court compute the time period prescribed by CPL § 30.30(1)(d) as being 83 days. This figure is reached by deeming September 1, 1982, as the commencement of the action and including all subsequent days until November 23, 1982, when this motion was made. We cannot agree with this computation. September 1, 1982, is the date that the accusatory instrument was affirmed to by the Police Officer involved. However, the Court copy of the Information indicates said instrument was actually time stamped as being filed on September 30, 1982. Defendant's contention, although erroneous, is understandable given the fact that the copy of the accusatory instrument did not bear any date of filing.

Turning to the People's opposition to Defendant's motion, we find a novel argument in all likelihood occasioned by the recent amendment to CPL 30.30(5)(b). The legislature, perhaps prompted by the concerns expressed in People v. Colon, 110 Misc.2d 917, 443 N.Y.S.2d 305, rev'd 112 Misc.2d 790, 450 N.Y.S.2d 136 (1982), has reevaluated when an action is to be deemed commenced for speedy trial purposes when an accused has been issued an appearance ticket. Now, a criminal action against a defendant commences on the date that he first appears in Court in response to the [appearance] ticket. (emphasis added, CPL § 30.30(5)(b)). The People contend that a summons and an appearance ticket are so similar in substance that the criminal action is deemed commenced for speedy trial purposes when a Defendant first appears in response to the summons, in this case on the November 1, 1982, arraignment date. We cannot agree with this time computation and designation of the date of commencement.

Initially, we note the very basic concept of criminal statutory construction that, had the legislature sought to include the summons situation within the scheme establish by the amendment to CPL § 30.30(5)(b), they would have specifically done so.

Secondly, we note critical distinctions between a...