People v. Griffen

• Decision Date: 26 September 1988
• Citation: 141 Misc.2d 627,533 N.Y.S.2d 807
• Parties: The PEOPLE of the State of New York v. Victor GRIFFEN, Defendant.
• Court: New York City Court

Page 807

533 N.Y.S.2d 807

141 Misc.2d 627

The PEOPLE of the State of New York v. Victor GRIFFEN, Defendant.

Criminal Court of the City of New York Queens County, Part AP I.

Sept. 26, 1988.

John J. Santucci, Dist. Atty., Queens County, Stacy Yanover, Asst. Dist. Atty., for the People.

Caesar D. Cirigliano by Jorge L. Nieves, New York City, for defendant.

MELVIN D. GLASS, Judge:

Defendant is charged with violating penal law section 240.25, harassment. He moves for, among other things, dismissal pursuant to criminal procedure law (CPL) section 30.30 on the ground that he has been denied his right to a speedy trial.

The action was commenced on August 19, 1987 with the filing of an information with the court containing factual non-hearsay allegations accusing the defendant of harassing the complainant. On the day of the filing the court issued a summons pursuant to CPL section 130.10 requiring the defendant to appear before the court on September 18, 1987 for the purpose of arraignment on the information. The defendant was personally served with the summons on August 25, 1987. On September 18, 1987 the defendant failed to appear and a warrant of arrest was issued pursuant to CPL 130.50. Defendant's initial appearance before the court was on April 14, 1988, two hundred and forty (240) days after the filing of the information.

As the defendant is charged with a violation, the People must announce their readiness for trial within 30 days, less excludable time, from the commencement of the action. CPL 30.30[1][d]. The action was commenced on August 19, 1987 when the accusatory instrument was filed. (CPL 30.30[1], 1.20[17]; People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 [1980]; People v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507 [1980] ). The People have never announced their readiness for trial on the record. People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287 [1985]. The People, relying on CPL 30.30[5][b], contend that the entire period of 240 days is excludable, as the "30.30 clock" does not begin to run until the defendant first appears in court in response to the summons. Since the People did not state their readiness on September 18, 1987, the issue in this case is even more sharply drawn. Unless the 30-day period between the filing and the return date is excludable under the provision of CPL 30.30[5][b] as amended by the Laws of 1982 (ch. 109), the court will be compelled to grant the motion to dismiss. The 1982 amendment remedied situations highlighted by the case of People v. Colon, 110 Misc.2d 917, 443 N.Y.S.2d 305 [N.Y.C.Crim.Ct.1981], rev'd. 112 Misc.2d 790, 450 N.Y.S.2d 136 [App.Term 1982], rev'd. 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 [1983], where the 30.30 time in a desk appearance ticket situation was held to start running on the date the appearance ticket was returnable. The amendment changed the law so that the "clock" does not start to run against the prosecution until the defendant first appears in court in response to the desk appearance ticket. The legislature, at that time, did not see fit to change the law with respect to summons matters. As of 1982, 30.30 time in summons cases continued to commence with the filing of an accusatory instrument.

In 1984, the legislature (L.1984, Ch. 670) once again saw fit to amend the 30.30 statute. It addressed itself to excludable time under subdivision (4)(c) by providing that when a bench warrant is issued pursuant to CPL 530.70, the 30.30 clock stops running. Defendants, having been arraigned and released on their own recognizance or bail who subsequently absconded, would not be afforded speedy trial protection. The legislature made no exclusion for a defendant who failed to appear after a summons or arrest warrant was issued pursuant to...