People v. Parker
| Decision Date | 05 October 1992 |
| Parties | The PEOPLE, etc., Appellant, v. David PARKER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Carl A. Vergari, Dist. Atty., White Plains, N.Y. (Diane E. Selker and Richard E. Weill, of counsel), for appellant.
Stephen J. Pittari, White Plains, N.Y. (Robert W. Stieve, of counsel), for respondent.
Before THOMPSON, J.P., and SULLIVAN, BALLETTA and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People, as limited by their brief, from so much of an order of the County Court, Westchester County (Carey, J.), entered September 23, 1991, as, upon reargument, adhered to its original determination in an order dated August 2, 1991, granting that branch of the defendant's omnibus motion which was to dismiss the indictment on speedy trial grounds.
ORDERED that the order is reversed insofar as appealed from, on the law, the order dated August 2, 1991, is vacated, that branch of the defendant's omnibus motion which was to dismiss the indictment is denied, the indictment is reinstated, and the matter is remitted to the County Court, Westchester County, for further proceedings consistent herewith.
The County Court erred in charging to the People a period of three days which had elapsed between the defendant's failure to appear in court and the subsequent issuance of a bench warrant for his return. The record reveals that upon the defendant's failure to appear, the court purposely delayed the formal issuance of the bench warrant for three days as an accommodation in order to permit the defendant to appear voluntarily. The defendant, however, absconded and was subsequently located in Connecticut where he had been arrested for burglary.
Although the three-day "grace period" was extended solely for the defendant's benefit, the County Court nevertheless charged this time period to the People, reasoning that any exclusion could commence, at the earliest, only upon the formal issuance of the warrant. We disagree. Inasmuch as the defendant was clearly "absent" within the meaning of CPL 30.30(4)(c), the three days which elapsed between his failure to appear and the formal issuance of the warrant should also have been excluded. To hold otherwise would be to reward the defendant for flouting the court's attempt to accommodate him and to unfairly penalize the People who in no sense contributed to the brief delay (cf., People v. Bolden, 174 A.D.2d 111, 578 N.Y.S.2d 914).
Further, the County Court erred in charging five days to the People upon concluding that the local Town Court, which had arraigned the defendant, was at fault in failing to immediately assign counsel to him. The record contains no evidence supportive of the conclusion that the period during which the defendant was without counsel was the court's "fault" (CPL 30.30[4][f]. Moreover, and under the circumstances presented, a brief delay of five days in the assignment of counsel was reasonable (cf., People v. Greene...
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