People v. Pappas

• Decision Date: 02 March 1987
• Citation: 128 A.D.2d 556,512 N.Y.S.2d 493
• Parties: The PEOPLE, etc., Respondent, v. Nicholas PAPPAS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 493

512 N.Y.S.2d 493

128 A.D.2d 556

The PEOPLE, etc., Respondent, v. Nicholas PAPPAS, Appellant.

Supreme Court, Appellate Division Second Department.

March 2, 1987.

Comer & Meyerson, New York City (Neal S. Comer, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki Kowalski and Sholom J. Twersky, of counsel), for respondent.

Before THOMPSON, J.P., and NIEHOFF, WEINSTEIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered August 9, 1983, convicting him of criminal possession of a controlled substance in the second degree, criminal possession of marijuana in the third degree, criminally using drug paraphernalia in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On February 16, 1982, the defendant was arrested and a felony complaint was filed charging him with various crimes which had provided the cause for his arrest. On March 4, 1982, the felony complaint was dismissed for failure to prosecute. On May 20, 1982, the defendant was indicted by a Kings County Grand Jury charging him with essentially the same crimes stemming from the February 16, 1982, criminal transaction as had the prior felony complaint. A warrant authorizing the defendant's arrest was then signed by a Judge and processed by the central warrants unit. On June 16, 1982, the arrest warrant was sent to the Kings County Richmond County warrant squad for execution. On June 20, 1982, for the first time, a police officer from the warrant squad attempted to execute the arrest warrant but the defendant was not home. The officer left his card and was contacted the following day by the defendant's attorney who arranged with the police officer to bring the defendant in on July 28, 1982, to be arraigned upon the indictment. At the arraignment, the defendant moved to dismiss the indictment pursuant to CPL 190.50. The motion, which was made returnable on August 9, 1982, was adjourned on that date to August 18, 1982, without objection by the defendant. On August 18, 1982, the Assistant District Attorney orally consented to the defendant's motion and informed counsel that the matter would be resubmitted to the Grand Jury. The defendant was reindicted on September 10, 1982, and was arraigned upon this second indictment on September 20, 1982, at which time the matter was adjourned to October 4, 1982, without objection by the defendant. On October 4, 1982, the People announced that they were ready to proceed to trial. By notice of motion dated October 6, 1982, the defendant moved to dismiss the indictment upon the ground that he was denied a speedy trial within the meaning of CPL 30.30 and the Supreme Court, Kings County (Spodek, J.), denied the motion. We affirm.

The filing of the felony complaint on February 16, 1982, commenced the proceeding (see, People v. Sinistaj, 67 N.Y.2d 236, 501 N.Y.S.2d 793, 492 N.E.2d 1209; People v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507; People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793). The allowable six-calendar-month statutory limitation in this case (February 16, 1982 to August 16, 1982) totaled 181 days (see, e.g., People v. Anderson, 66 N.Y.2d 529, 540, 498 N.Y.S.2d 119, 488 N.E.2d 1231; People v. Jones, 105 A.D.2d 179, 483 N.Y.S.2d 345, affd. 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231; People v. Smith, 97 A.D.2d 485, 468 N.Y.S.2d 129). The period of delay between February 16, 1982 and October 4, 1982, the day the People announced that they were ready for trial, totaled 230 days, or 49 days in excess of the 181 day statutory limitation. Accordingly, the People had the burden to show that at least 49 days were excludable pursuant to CPL 30.30(4) (see, People v. Kendzia, 64 N.Y.2d 331, 338, 486 N.Y.S.2d 888, 476 N.E.2d 287; People v. Berkowitz, 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783; People v. Sturgis, 38 N.Y.2d 625, 627, 381 N.Y.S.2d 860, 345 N.E.2d 331).

We find, based on the record before us, that the following periods of delay, which total 53 days were excludable: (1) eight days commencing July 20, 1982, the date the police officer attempted to execute the arrest warrant, and ending July 28, 1982, the date the defendant appeared pursuant to an agreement to do so, since the defendant was unavailable during this period (CPL 30.30); (2) 12 days commencing July 28, 1982, the date the defendant was arraigned upon the first indictment and moved to dismiss the same, and ending August 9, 1982, the date the motion was returnable, since this delay resulted from the defendant's pretrial motion (CPL 30.30 People v. Worley, 66 N.Y.2d 523, 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228; People v. Brown, 113 A.D.2d 812, 813, 493 N.Y.S.2d 568) notwithstanding the People's subsequent consent to the relief requested (cf. ...