People v. Ortiz

• Citation: 200 A.D.2d 505,606 N.Y.S.2d 677
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose ORTIZ, Defendant-Appellant.
• Decision Date: 25 January 1994
• Court: New York Supreme Court Appellate Division

Page 677

606 N.Y.S.2d 677

200 A.D.2d 505

The PEOPLE of the State of New York, Respondent, v. Jose ORTIZ, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Jan. 25, 1994.

Before MURPHY, P.J., and KUPFERMAN, ASCH and NARDELLI, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Stephen G. Crane, J.), rendered November 20, 1990, convicting the defendant, after a jury trial of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fifth degree, and sentencing the defendant to concurrent prison terms of 10 to 20 years, 10 to 20 years and 2 1/2 to 5 years, respectively, unanimously reversed, on the law, the conviction vacated and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30 day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.

Pursuant to CPL 30.30(1)(a), the People are required to announce their readiness for trial within six months of the commencement of a criminal proceeding in which the defendant is charged with a felony. Defendant contends that his right to a speedy trial was denied since the People were not ready until 7 1/2 months of includable time had elapsed. The sole issue on the present appeal is whether the People are accountable for the 45-day period from the filing of the indictment on November 28, 1989, to the calendaring of the case for arraignment on January 12, 1990.

In deciding the motion, the Trial Court, based upon our holding in People v. Rivera, 160 A.D.2d 234, 553 N.Y.S.2d 682, deemed the 45-day period excludable. In Rivera we had held that the People were entitled to a reasonable period of time between the filing of an indictment and arraignment, such reasonable time being excludable for speedy trial purposes. If, however, it was not clear at the time of the Trial Court's ruling, it is now that Rivera was in error, the Court of Appeals having since held squarely that "[d]elays between indictment and the arraignment, like other court congestion, do not prevent the People from being ready for trial. Such delays are, therefore, not excludable under CPL 30.30" (People v. Correa, 77 N.Y.2d 930, 931, 569 N.Y.S.2d 601, 572 N.E.2d 42; see also, People v. Cortes, 80 N.Y.2d 201, 213, 590 N.Y.S.2d 9, 604 N.E.2d 71; People v. Collins, 82 N.Y.2d 177, 604 N.Y.S.2d 11, 624 N.E.2d 139; People v. Smith, 82 N.Y.2d 676, 601 N.Y.S.2d 466, 619 N.E.2d 403).

The memorandum decision of the Court of Appeals in Correa, supra, of course, merely affirmed a determination of this court (161 A.D.2d 391, 555 N.Y.S.2d 715), which we note antedated the Trial Court's ruling in this case; it did not, contrary to the People's present arguments, articulate any new rule of law. To the contrary, Rivera notwithstanding, it has long been established that the People's lack of readiness to proceed to trial is not generally attributable to court congestion and accordingly that court congestion is not ordinarily a ground for the exclusion of time under CPL...