People v. Feliciano

• Court: New York City Court
• Writing for the Court: ALLEN MOSS
• Citation: People v. Feliciano, 348 N.Y.S.2d 945, 75 Misc.2d 921 (N.Y. City Ct. 1973)
• Decision Date: 09 November 1973
• Parties: The PEOPLE of the State of New York v. Arcadio FELICIANO, Defendant.

Page 945

348 N.Y.S.2d 945

75 Misc.2d 921

The PEOPLE of the State of New York v. Arcadio FELICIANO, Defendant.

Criminal Court of the City of New York, Kings, County, Part 3A3.

Nov. 9, 1973.

[75 Misc.2d 922] Eugene Gold, Dist. Atty., Kings County, by Michael Gore, Asst. Dist. Atty., of counsel, for the People.

William Gallagher and George H. Gorran, Brooklyn, for defendant.

OPINION

ALLEN MOSS, Judge.

This motion presents a question which is troublesome, which soon will become more so, and for which there is, as yet, no appellate guideline.

Defendant moves under Criminal Procedure Law, section 170.30, subdivision 1(e) and section 30.30, subdivision 1(b) to dismiss the misdemeanor information. He alleges that he has been denied his right to a speedy trial, that the period fixed within which the District Attorney must be ready for trial has expired, and that the District Attorney within such period has never been ready for trial.

Criminal Procedure Law section 30.30, subdivision 1(b), provides that 'except as otherwise provided in subdivision three, a motion . . . Must be granted (emphasis supplied) where the people are not ready for trial within . . . ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses at least one of which is a misdemeanor punishable by . . . imprisonment of more than three months and none of which is a felony.'

Paragraph (b) of subdivision 3 of section 30.30 provides that such a motion 'may be denied where the people are not ready for trial if the people were ready for trial prior to the expiration of the specified period and their present unreadiness is due to some exceptional fact or circumstance, including, but not limited to, the sudden unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.' (emphasis supplied). Subdivision 4 prescribes periods to be excluded from the computation of the time period. There are no such excludable periods in this case which affect this motion.

All the charges against defendant at the time of the motion are misdemeanors, petit larceny (Penal Law 155.25), criminal possession of stolen property (Penal Law 165.40), and unauthorized use of a motor vehicle (Penal Law 165.05). Originally the first two were charged as felonies, grand larceny (Penal Law 155.30), criminal possession of stolen property (Penal Law 165.45), and only the third charge was a misdemeanor, but on June 9, 1973 on consent of the assistant district attorney, the felony charges were reduced to misdemeanors.

Chronologically the steps in this action were:

5/7/73--Alleged crime occurred; defendant was arrested and arraigned (on two felony charges and one misdemeanor). He was held on bail (which was not posted) for felony hearing 5/9.

5/9--Hearing adjourned to 5/30 at people's request. Defendant was released on his own recognizance.

5/30--Hearing adjourned to 6/11 at defendant's request (for his consideration by Brooklyn Court Employment Project).

5/30--Defendant, on some date during this period, was arrested in connection with another charge.

6/9--Hearing adjourned to 6/19. Because defendant was incarcerated in connection with the other charge, bail was fixed in this matter to give defendant the benefit, in this action too, of his jail time. Because of Brooklyn Court Employment Project's interest until 6/9 the period between 5/30 and 6/19 (a reasonable period after Brooklyn Court Employment Project withdrew) is chargeable to defendant, but this fact is not relevant on this motion for the reason stated below.

6/19--Complainant's testimony was stipulated by defendant. The felony charges were reduced to misdemeanors on consent of assistant district attorney. Action was adjourned to 6/27 for misdemeanor hearing. The 90 day period within which the people must be ready for trial began to run on 6/19, the first date on which all the charges against defendant were misdemeanors and none was a felony.

6/27--Misdemeanor hearing adjourned to 7/24 at people's request.

7/24--Misdemeanor hearing held. Defendant held for trial. Defendant requested trial by jury. Jury trial date fixed for 8/1. On 7/24 the arresting officer was present. Complainant's testimony having been stipulated, the officer was the only people's witness necessary for the trial.

8/1--Defendant (still incarcerated) was produced by Department of Correction quite late in the day. There seems to have been some confusion earlier in the day as to whether he was incarcerated or free on bail. A warrant was ordered to be issued, but the order was rescinded. The jury trial was adjourned to 9/4. (On this motion to dismiss, testimony was taken by this court to determine whether the arresting officer was present in court on 8/1. It was determined as a fact that he was not.)

9/4--Jury trial adjourned to 9/24 at people's request because the officer was on vacation. Notice of the adjourned date was sent to the officer.

9/24--Jury trial adjourned to 10/11 by the people because the officer was not present in court. Marked 'Final against People.' Officer was again notified of adjourned date.

10/11--Everyone present. Both sides ready. No jury part available. Defendant moved orally to dismiss under Criminal Procedure Law, section 170.30(1)(e). Trial and motion were adjourned to 10/15 10/15--Everyone present. Both sides ready, but action was not sent to jury part for trial because defendant requested time within which to submit memorandum or cases on motion. Trial and motion adjourned to 10/18.

10/18--Everyone present. Trial and motion adjourned to 10/23.

10/23--Everyone present. Motion was argued. Court took testimony of officer concerning his presence in court for trial on 8/1. He lacked written records of his activities on that date and needed them to be certain. Argument of motion and testimony of officer continued to 10/24.

10/24--Officer produced his time records. These indicated that he was not in this court on this case or any other on 8/1.

The assistant district attorney makes two claims. First, he contends that the people were ready and could have proceeded to trial on July 24th, the date on which the misdemeanor hearing was held. However he admitted that he made no such statement to the court on that date, nor did he request on July 24th, the hearing day, that there be a...