People v. Giordano
| Decision Date | 15 May 1981 |
| Citation | 440 N.Y.S.2d 110,81 A.D.2d 1003 |
| Parties | PEOPLE of the State of New York, Respondent, v. Leonard GIORDANO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Rose H. Sconiers, Buffalo by Joseph Mistrett, Buffalo, for appellant.
Edward C. Cosgrove, Buffalo by Kurt Sajda, Buffalo, for respondent.
Before DILLON, P. J., and SIMONS, HANCOCK, DOERR and MOULE, JJ.
This matter, previously before the court, was remitted for further proceedings to determine whether the People were ready for trial within the statutory period . We conclude the People were ready for trial within the six-month period.
This criminal action was commenced September 6, 1977 when defendant was first arraigned. The accusatory instrument filed against him was dismissed on September 14, 1977 after failure of the complaining witness to appear. The People then submitted the matter to the Grand Jury, which indicted defendant on January 20, 1978. At the arraignment on March 17, 1978 the People announced the case ready for trial, and defendant was granted a 45-day adjournment for motions. On April 9, 1979 defendant's motion to dismiss the indictment for lack of a speedy trial was denied, and the case proceeded to trial. Defendant was convicted of criminal possession of a controlled substance in the sixth degree (Penal Law, former § 220.06) and criminal sale of a controlled substance in the sixth degree (Penal Law, former § 220.31), both class D felonies.
The four months and 14 days from defendant's arraignment on the initial accusatory instrument, September 6, 1977, to the return of the indictment on the same charges, January 20, 1978, is time chargeable to the People. A criminal action initiated by the filing of a felony complaint is not terminated by the complaint's dismissal, so long as the district attorney is free to continue the prosecution by obtaining an indictment. Should an indictment be returned after dismissal of a complaint for delay in prosecution, the two are considered part of the same criminal action, the commencement of which is the filing of the complaint (People v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507). Defendant concedes to being unavailable from January 20, 1978 to his arraignment on March 17, 1978, as he was out of the court's jurisdiction, and this time is not chargeable to the People. Concededly, defendant was not brought to...
To continue reading
Request your trial
-
People v. Caussade
...the prosecution's continued readiness" (People v. Cole, supra, 90 A.D.2d at 29, 457 N.Y.S.2d 589 [emphasis added]. People v. Giordano, 81 A.D.2d 1003, 440 N.Y.S.2d 110, affd. 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d 1333 further illustrates the principle that not all delay will require d......
-
People v. Anderson
...readiness for trial during the period and further established that the delay was attributable to court congestion" (People v. Giordano, 81 A.D.2d 1003, 440 N.Y.S.2d 110), for it is well settled that "language of any opinion must be confined to the facts before the court" (Dougherty v. Equit......
-
People v. Collins
...for trial on the record within the statutory six month period and thus satisfied their obligation under CPL 30.30 (People v. Giordano, 81 A.D.2d 1003, 440 N.Y.S.2d 110, affd. 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d 1333). The criminal action herein is deemed to have commenced for the pu......
-
People v. O'Neal
...readiness for trial, with the result that the operational effect of CPL 30.30 had not ceased on April 29, 1981 (seePeople v. Giordano, 81 A.D.2d 1003, 440 N.Y.S.2d 110, affd. 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d The People maintain, for the first time on appeal, that the period from ......