People v. Gaggi

• Decision Date: 13 August 1984
• Citation: 478 N.Y.S.2d 732,104 A.D.2d 422
• Parties: The PEOPLE, etc., Appellant, v. Anthony GAGGI, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 732

478 N.Y.S.2d 732

104 A.D.2d 422

The PEOPLE, etc., Appellant, v. Anthony GAGGI, Respondent.

Supreme Court, Appellate Division Second Department.

Aug. 13, 1984.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Brian D. Foley, Brooklyn, of counsel), for appellant.

La Rossa, Axenfeld & Mitchell, New York City (James M. La Rossa, John W. Mitchell and Karen F. Silverman, New York City, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, GIBBONS and BROWN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County, dated February 7, 1983, which granted that branch of defendant's motion which sought to dismiss two indictments for failure to afford him a speedy trial in accordance with CPL 30.30.

Order reversed, on the law and the facts, that branch of defendant's motion which was to dismiss the indictments for failure to afford him a speedy trial denied, and matter remitted to the Supreme Court, Kings County, for determination of the remaining branches of defendant's motion and for further proceedings on the indictments.

Defendant was convicted of criminal possession of a weapon in the second degree, and attempted assault in the first degree as a lesser included offense of attempted murder in the first degree. We affirmed the judgment of conviction (People v. Gaggi, 80 A.D.2d 860, 437 N.Y.S.2d 214) and leave to appeal to the Court of Appeals was denied (People v. Gaggi, 53 N.Y.2d 842, 440 N.Y.S.2d 1032, 422 N.E.2d 838).

Subsequently, the defendant made a motion to set aside the conviction upon the ground of juror misconduct. By order entered May 20, 1982, that motion was granted. Although the People filed a notice of appeal from that order, following some intermediate activity, they advised Criminal Term, on August 16, 1982, that the appeal would not be perfected and that, as required by relevant decisional law (see People v. Gonzalez, 61 N.Y.2d 633, 471 N.Y.S.2d 847, 459 N.E.2d 1285), they would re-present the case to the Grand Jury. A motion to dismiss the indictments for failure to comply with the speedy trial provisions of CPL 30.30 and for other relief was made on or about December 20, 1982. On February 7, 1983, the branch of the motion which was to dismiss for failure to afford defendant a speedy trial was granted. We reverse.

Pursuant to CPL 30.30 (subd. 1, par. subd. 4), the People must announce their readiness for trial within six months of the commencement of a criminal proceeding charging the defendant with a felony, less certain excludable periods (see, e.g., People v. Smith, 97 A.D.2d 485, 468 N.Y.S.2d 129). Because defendant was to be retried upon "an order for a new trial", the statutory period "must be deemed to have commenced on * * * the date the order occasioning a retrial became final" (CPL 30.30, subd. 5, par. ). While our concurring colleague concludes that the statutory period would not begin to run until the People had exhausted their appellate rights or withdrew their appeal, the parties have not discussed the issue in their briefs and since, in our view, reversal is required even if the date of entry of the order directing a new trial is utilized, as Criminal Term did, we need not pass on that question.

A total of 64 days, representing the delay between entry of the order directing the new trial and the defendant's first scheduled court appearance (May 20, 1982--June 21, 1982), the period between the filing of the indictment and the arraignment (September 10, 1982--September 20, 1982), which the defendant consented to by failing to object (CPL 30.30, subd. 4, par. ), and the interval between the arraignment and the first court date, to which the defendant also failed to object (September 20, 1982--October 12, 1982), are all excludable (see People v. O'Neal, 99 A.D.2d 844, 472 N.Y.S.2d 449; People v. Smith, 97 A.D.2d 485, 468 N.Y.S.2d 129, supra; People v. Gadsden, NYLJ, Jan. 21, 1982, p. 13, col. 3).

By virtue of these exclusions, the six-month period, measured from May 20, 1982, could not have expired until January 23, 1983. Inasmuch as the People "askthis case go to trial" on December 7, 1982, and any adjournment after that date was at the defendant's request, there is no basis for dismissal pursuant to CPL 30.30 (see People v. Moorehead, 61 N.Y.2d 851, 473 N.Y.S.2d 967, 462 N.E.2d 144; People v. Giordano, 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d 1333; People v. Mastrangelo, 100 A.D.2d 914, 474 N.Y.S.2d 572; People v. Josefson, 100 A.D.2d 630, 473 N.Y.S.2d 594; People v. Evans, 99 A.D.2d 535, 471 N.Y.S.2d 324).

MANGANO, GIBBONS and BROWN, JJ., concur.

TITONE, J.P., concurs to reverse the order appealed from and to remit the matter to the Supreme Court, Kings County, for further proceedings, with the following memorandum:

Because the People's comment at the December 7, 1982 appearance does not constitute an unequivocal statement of readiness and because of Criminal Term's express factual finding that the People never announced such readiness, I cannot join the majority's thesis. Nonetheless, finding the defendant's motion premature, I cast my vote for reversal.

Pursuant to CPL 30.30 (subd. 5, par. ), when a defendant is to be retried upon "an order for a new trial" the six-month period within which the People must announce their readiness for trial "must be deemed to have commenced on * * * the date the order occasioning a retrial final". Since the CPL contains no definition of the word "final", it must be assumed that the Legislature intended that...