People v. Jaswinder
| Citation | 632 N.Y.S.2d 923,165 Misc.2d 371 |
| Parties | The PEOPLE of the State of New York v. Singh JASWINDER, Defendant. |
| Decision Date | 15 June 1995 |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., Luke Martland, Asst. Dist. Atty., New York County, for the people.
Brad Sage, Legal Aid Society, for defendant.
The defendant was arrested on October 28, 1994 and issued a desk appearance ticket ("DAT") charging him with three counts of assault in the third degree (Penal Law § 120.00(1), (2) and (3)--class A misdemeanors), and leaving the scene of an accident (Vehicle and Traffic Law § 600(2)(a)--a class B misdemeanor). On January 17, 1995, the charge of PL § 120.00(2) was dismissed upon the People's motion and the remaining assault counts were each reduced to attempted assault in the third degree (class B misdemeanors). The defendant now moves to dismiss the accusatory instrument on the ground that he has been denied his right to a speedy trial pursuant to CPL § 30.30(1)(c).
For the reasons set forth herein, defendant's motion to dismiss is granted.
Where the original accusatory instrument charging an A misdemeanor is replaced with an accusatory instrument charging a B misdemeanor, the People are bound by the speedy trial time provided by the original charge, unless there is an indication that the original charge was baseless from the outset or made in bad faith. People v. Derosier, NYLJ, October 27, 1994, p. 29, col. 3 (Crim.Ct.N.Y.Co.), and cases cited therein. In the instant matter, there is no indication that the People either acted in bad faith or that the original charges were baseless from the outset, nor does defendant make any specific allegation of such in his moving papers. Accordingly, this court finds that the ninety day period derived from the original class A misdemeanor charges apply. CPL § 30.30(1)(b); People v. Derosier, supra; cf. People v. Bernard, 129 Misc.2d 1083, 495 N.Y.S.2d 634 (Crim.Ct.Queens Co.1985).
Turning to the particular adjournments in this case, the court makes the following findings.
On November 22, 1994, defendant first appeared in response to the DAT. Although The Legal Aid Society represented defendant on this date, the case was adjourned to December 13, 1994, for defendant to appear with private counsel and for defendant's arraignment on the accusatory instrument. This period is excludable. CPL § 30.30(4)(f).
On December 13, 1994, defendant indicated that he could not afford private counsel and The Legal Aid Society was assigned to represent defendant. Defendant was arraigned and a motion schedule was set by the court. The case was adjourned to January 17, 1995 for the People's response to defense motions and for the court's decision thereon. This period is excludable. CPL § 30.30(4)(a).
On January 17, 1995, the People filed and served their response to defense motions. Further, the count of reckless assault was dismissed and the two remaining counts of assault were reduced to attempted assault. The court denied defendant's facial sufficiency motion and, there being no requested hearings, adjourned the case to February 22, 1995 for trial. Defendant now argues that this period is not excludable pursuant to People v. Green, 90 A.D.2d 705, 455 N.Y.S.2d 368 (1st Dept.1982) and People v. Douglas, 156 A.D.2d 173, 548 N.Y.S.2d 217 (1st Dept.1989). Specifically, defendant avers that the People's reliance upon Green and Douglas, supra, is misplaced as there were no pre-trial hearings requested and therefore the People were not placed in the position of having to be ready for a hearing before being aware that the court would be ordering one. This court might find such an argument persuasive had defendant not included a facial sufficiency motion in his omnibus motion. However, in light of the fact that defendant moved for dismissal, this case is analogous to the situation in Douglas, supra, where the court found the adjournment period following its denial of defendant's speedy trial motion excludable. Thus a portion of this adjournment is excludable.
The question presented is how much of the adjournment will be excluded for the purpose of trial preparation. People v. Green and People v. Douglas, supra, do not stand for the proposition that any adjournment for trial no matter how long is automatically excludable. Rather, only that period reasonably necessary to allow the prosecution to prepare for trial will be excluded. So, for...
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...at the request or with the consent of the defendant or defendant's counsel." HRPP Rule 48(c) (3). People v. Jaswinder , 165 Misc.2d 371, 632 N.Y.S.2d 923, 925 (N. Y. Crim. Ct. 1995) (excluding time of adjournment from first appearance to appearance with private counsel) and Commonwealth v. ......
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...application of 60 speedy trial time when People reduce A misd. to B misd. after 60 days expires); People v. Jaswinder, 165 Misc.2d 371, 632 N.Y.S.2d 923 (N.Y.Co.Crim.Ct.1995) (absent evidence that originally charged A misd. was baseless, 90 day time period applied when A misd. dismissed, an......
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