People v. Muhanimac

• Decision Date: 10 March 1992
• Citation: 181 A.D.2d 464,581 N.Y.S.2d 301
• Parties: The PEOPLE of the State of New York, Appellant, v. Michael MUHANIMAC, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 301

581 N.Y.S.2d 301

181 A.D.2d 464

The PEOPLE of the State of New York, Appellant, v. Michael MUHANIMAC, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

March 10, 1992.

Before SULLIVAN, J.P., and CARRO, MILONAS, ASCH and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Juanita Bing-Newton, J.), entered August 24, 1989, which granted defendant's motion pursuant to CPL 30.30 to dismiss an indictment charging him with robbery in the second degree and grand larceny in the fourth degree, unanimously reversed, on the law and on the facts, the indictment reinstated and the matter remanded for further proceedings.

The IAS court concluded that a total of 181 days were chargeable to the People but dismissed the indictment on the erroneous ground that the allowable time period for the People to answer ready under CPL 30.30 was 180 days, rather than 181 days. This was error. (See, People v. Stiles, 70 N.Y.2d 765, 520 N.Y.S.2d 745, 514 N.E.2d 1368.) Notwithstanding, defendant argues that the court's determination was correct because the filing date of the accusatory instrument was September 13, 1988, not, as the IAS court found, September 14, 1988. As the submissions on appeal clearly show, however, the accusatory instrument was filed in the Criminal Court on September 14, 1988 and thus this action was commenced (CPL 1.20[17] on that date. Thus, even by the IAS court's calculation of chargeable time, the indictment should not have been dismissed.

The People also challenge the court's charging of three other time periods, totalling 33 days, to them. Clearly, the five-day delay commencing January 12, 1989, when defense counsel requested that the prosecutor delay presentation of the case to the grand jury while he contacted defendant to determine whether he wished to testify, should have been excluded. (See, CPL § 30.30[4][b]; People v. Jason, 158 A.D.2d 337, 551 N.Y.S.2d 25, lv. denied 76 N.Y.2d 737, 558 N.Y.S.2d 899, 557 N.E.2d 1195.) During that conversation, counsel agreed to telephone the prosecutor on January 17, 1989 with defendant's answer. On January 17th, defense counsel telephoned the prosecutor to advise him that defendant could not be located, that defendant's grand jury notice would be withdrawn and that he had no objection to the case being presented to the grand jury. The case was, in fact, presented on January 20, 1989, the next convenient date for the People's witnesses. The IAS court's ruling that counsel's January 12, 1989 request did not delay the People's grand jury presentation is at odds with the reality of the situation. To require the People to proceed in the face of such a request would be highly impractical. The People could not have obtained an indictment without affording defendant, who, as noted, had filed a...