People v. Parris

• Decision Date: 04 October 1990
• Citation: 565 N.Y.S.2d 368,148 Misc.2d 347
• Parties: The PEOPLE of the State of New York, Appellant, v. Devon PARRIS, a/k/a Devon Harris, a/k/a David Harris, Defendant-Respondent.
• Court: New York Supreme Court

Page 368

565 N.Y.S.2d 368

148 Misc.2d 347

The PEOPLE of the State of New York, Appellant, v. Devon PARRIS, a/k/a Devon Harris, a/k/a David Harris Defendant-Respondent.

Supreme Court, Appellate Term First Department.

Oct. 4, 1990.

Robert M. Morgenthau, Dist. Atty. (Paul Shechtman, of counsel, New York City), for appellant.

Philip L. Weinstein and Carol Grumbach, New York City, for defendant-respondent.

Before OSTRAU, P.J., and SANDIFER and MILLER, JJ.

PER CURIAM:

Order entered April 14, 1989 (Robert Straus, J.) reversed, on the law, motion denied, and the accusatory instrument reinstated.

This misdemeanor prosecution was commenced for purposes of CPL § 30.30 on March 2, 1989, the date defendant first appeared in court in response to the desk appearance ticket issued upon his arrest on October 10, 1988 (CPL § 30.30, subd. 5[b], as amended May 18, 1982). In concluding otherwise and holding that the criminal action was "constructively commenced" on October 28, 1988, the return date specified in the appearance ticket, the court below focused improperly upon the circumstances that defendant was incarcerated on other, unrelated charges on the October 28 appearance date and that defendant's location arguably could then have been ascertained by "due diligence". The court's ruling is contrary to the plain language of CPL § 30.30(5)(b), which provides as follows: "where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket". The statute is cast in mandatory terms and provides for no "due diligence" or other exceptions (cf., CPL 30.30[4][c]. Although delays engendered by the People's lack of diligence in locating and producing an incarcerated defendant for arraignment may support a dismissal based upon a violation of the defendant's due process right to a speedy trial, such pre-commencement delays are not relevant in the calculation of statutory speedy trial time under CPL § 30.30 (People v. Cooper, 142 Misc.2d 820, 538 N.Y.S.2d 432; see also, People v. Bryant, 65 A.D.2d 333, 411 N.Y.S.2d 932, appeal dismissed 46 N.Y.2d 1037, 416 N.Y.S.2d 587, 389 N.E.2d 1107; People v. Alderson, 55 A.D.2d 977, 390 N.Y.S.2d 272). In the absence of any due process claim here, and since the total time chargeable to the prosecution was within the statutory limit required by CPL § 30.30, defendant's dismissal motion should have...