People v. Morales

• Decision Date: 24 March 1992
• Parties: The PEOPLE of the State of New York, Respondent, v. Emilio MORALES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 60

581 N.Y.S.2d 60

181 A.D.2d 572

The PEOPLE of the State of New York, Respondent, v. Emilio MORALES, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 24, 1992.

Before CARRO, J.P., and WALLACH, KASSAL and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Carol Berkman, J., on the speedy trial motion; Leslie Crocker Snyder, J., at trial and sentence), rendered November 29, 1989, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a prison term of 12 1/2 to 25 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reversing the sentence and imposing an indeterminate term of imprisonment of 7 1/2 to 15 years, and otherwise affirmed.

Defendant's contention that the court erroneously denied his speedy trial motion is based largely on one adjournment of 33 days, from October 13, 1988, when the People announced that an indictment had been filed, to November 15, 1988, when defendant was arraigned on the indictment in Supreme Court. While the time between indictment and arraignment is ordinarily chargeable to the People (People v. Correa, 77 N.Y.2d 930, 569 N.Y.S.2d 601, 572 N.E.2d 42), the defendant did not merely acquiesce in the adjournment (see, People v. Davis, 142 A.D.2d 931, 530 N.Y.S.2d 1012, lv denied, 72 N.Y.2d 917, 532 N.Y.S.2d 851, 529 N.E.2d 181), but specifically requested a date two weeks later than the one suggested by the court. By explicitly requesting a delay beyond the adjournment suggested by the court, defendant consented to what otherwise might have been includable time (People v. Meierdiercks, 68 N.Y.2d 613, 505 N.Y.S.2d 51 496 N.E.2d 210). The court had concluded that 144 days (mistakenly computed as 143 days in its written decision) were chargeable, and since the People concede that an additional 18 days, from February 16, 1989 to March 6, 1989, are includable, the total chargeable time would thus be 162 days. At the very least, the 14 days beyond the date suggested by the court are excludable as time specifically requested by the defense (People v. Gerstel, 134 A.D.2d 281, 520 N.Y.S.2d 451). This would leave 19 includable days, bringing the total to 181 days.

However, the People correctly urge that the court erroneously charged them with the entire adjournment for the arraignment on the superseding indictment, from January 17, 1989 to February 16, 1989. Defense counsel rejected the court's suggested date of February 9, stating that he would be out of town, and requested February 16. It is not necessary that we determine whether the period from January 17 to February 9, 1989 is chargeable to the People, or excludable under People v. Meierdiercks, supra. At least the seven-day period between February 9 and February 16 should not have been charged to the People because counsel...