People v. Holmes

Citation615 N.Y.S.2d 52,206 A.D.2d 542
PartiesThe PEOPLE, etc., Appellant, v. Alfred HOLMES, Respondent.
Decision Date25 July 1994
CourtNew York Supreme Court Appellate Division

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. Mackechnie, Richard T. Faughnan and Leonard Joblove, of counsel), for appellant.

Philip L. Weinstein, New York City (Diane Pazar, of counsel), for respondent.

Before ROSENBLATT, J.P., and MILLER, LAWRENCE and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County (Lewis, J.), dated September 28, 1992, which granted the defendant's motion to dismiss the indictment for failure to comply with his statutory speedy trial rights.

Ordered that the order is affirmed.

The defendant was arrested on August 16, 1990, and charged with burglary in the second degree and related lesser offenses. A felony complaint was filed the following day. Thus, on August 17, 1990, the speedy trial time limitation of six months began to run (CPL 1.20[16]; 30.30[1][a]. This six month period encompassed 184 calendar days. The Supreme Court found that the People were not ready for trial within this 184-day period. We agree.

The People concede that 89 days of delay were chargeable to them, 66 of those days stemming from repeated adjournments due to their inability to locate the file on the defendant's case. However, in addition to this period, several other blocks of time are chargeable to the People.

The Supreme Court initially dismissed the indictment by order dated December 5, 1990. The defendant was released from custody on January 22, 1991. By order dated December 2, 1991, this court reversed the order dismissing the indictment and ordered that it be reinstated (see, People v. Holmes, 178 A.D.2d 437, 576 N.Y.S.2d 810). Notices mailed to the defendant's last known address were returned as undeliverable, as he had moved to a new residence. On March 19, 1992, the defendant was returned on a bench warrant.

Two time periods are in issue regarding the above events. The time after March 11, 1991, when the People filed their notice of appeal, until this court's decision and order dated December 2, 1991, reinstating the indictment, is excludable pursuant to CPL 30.30(4)(a). However, the People, notwithstanding the court's bench ruling dismissing the indictment on December 5, 1990, did not file their notice of appeal until March 11, 1991, because they claim they were never served with a copy of the order. Ordinarily, the time following the dismissal of an indictment must be charged to the People, since, without an indictment, they are clearly unable to proceed to trial (see, People v. Bryant, 153 A.D.2d 636, 639-640, 544 N.Y.S.2d 661). The People argue, however, that the 93 days between December 5, 1990, and March 8, 1991, when they received the written order, should also be excluded because prior to the receipt of that order, they could not file their notice of appeal.

The People are correct that they could not appeal from the court's oral ruling dismissing the indictment (see, People v. Herrara, 173 A.D.2d 850, 571 N.Y.S.2d 63). There is no dispute that the 30 days in which to file their appeal began to run from the date they were served with a copy of the written order (CPL 460.10[1][a]. Once served, they promptly perfected their appeal (see, People v. Aaron, 201 A.D.2d 574, 607 N.Y.S.2d 950). However, contrary to the People's present contention, the period during which the People did nothing to obtain a copy of the written order until they moved to unseal the court file on February 28, 1991, does not constitute "a reasonable period of delay resulting from the defendant's motion to dismiss the indictment [nor] a period during which the motion was under consideration by the court". Regardless of whether the defendant failed to serve a copy of the written order on the People, assuming that the defendant had even obtained a copy of the written order, the People nevertheless were less than diligent in their attempt to obtain a copy of the order before the file was sealed. Thus, we agree that this time period of 93 days was appropriately charged to the People. Accordingly, to this point, the People are chargeable with 182 days of post-readiness delay.

The People are also chargeable with the 71 days from January 8, 1992, the date the defendant first failed to appear in court following the reinstatement of the indictment, until March 19, 1992, when he was returned on a bench warrant. The People failed to establish that during this period the defendant, who had been released on January 22, 1991, was attempting to avoid apprehension (see, People v. Taylor, 139 A.D.2d 543, 526 N.Y.S.2d 624). Additionally, the People failed to establish that they exercised due diligence in attempting to locate him (see, People v. Bolden, 81 N.Y.2d 146, 597 N.Y.S.2d 270, 613 N.E.2d 145). Accordingly, adding this 71 days to the 182 days already...

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9 cases
  • People v. Moyer, 00-01268
    • United States
    • New York Supreme Court Appellate Division
    • March 15, 2002
    ...following the entry of that order (see, CPL 210.20 [6]), and thus that 30-day period is not chargeable to the People (cf., People v Holmes, 206 A.D.2d 542, 543). Defendant further contends that he was improperly retried after the court, sua sponte and over his objection, declared a mistrial......
  • People v. Elmer
    • United States
    • New York Court of Appeals
    • June 27, 2012
    ...series of Appellate Division cases that routinely dismissed, or held in abeyance, appeals taken from oral orders ( see People v. Holmes, 206 A.D.2d 542, 615 N.Y.S.2d 52 [2d Dept.1994]; People v. Austin, 208 A.D.2d 990, 618 N.Y.S.2d 115 [3d Dept.1994]; People v. Herrara, 173 A.D.2d 850, 571 ......
  • People v. Elmer
    • United States
    • New York Court of Appeals
    • June 27, 2012
    ...series of Appellate Division cases that routinely dismissed, or held in abeyance, appeals taken from oral orders ( see People v. Holmes, 206 A.D.2d 542, 615 N.Y.S.2d 52 [2d Dept.1994]; People v. Austin, 208 A.D.2d 990, 618 N.Y.S.2d 115 [3d Dept.1994]; People v. Herrara, 173 A.D.2d 850, 571 ......
  • People v. Scott
    • United States
    • New York City Court
    • April 23, 1997
    ...When there is an unreasonable period of delay in perfecting the appeal then the People are chargeable with said delay. People v. Holmes, 206 A.D.2d 542, 615 N.Y.S.2d 52; People v. Green, 139 A.D.2d 760, 527 N.Y.S.2d 509. The defendant contends that the People took an extraordinary period of......
  • Request a trial to view additional results

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