People v. Peterson
| Decision Date | 02 December 1985 |
| Parties | The PEOPLE, etc., Appellant, v. Jasper PETERSON, Respondent. |
| Court | New York Supreme Court — Appellate Division |
William V. Grady, Dist. Atty., Poughkeepsie (Joan H. McCarthy, of counsel), for appellant.
John F. Clennan, Centereach, for respondent.
Before MOLLEN, P.J., and LAZER, WEINSTEIN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from an order of the County Court, Dutchess County (Traficanti, J.), dated January 4, 1985, which granted defendant's motion to dismiss the indictment for failure to accord him a speedy trial.
Order affirmed.
Defendant's motion to dismiss the instant indictment on speedy trial grounds was granted due to the People's failure to establish that the two-year delay in announcing their readiness for trial was an excludable period under CPL 30.30(4). It is the People's position that the period from the commencement of the proceedings on August 13, 1982 until the defendant's arrest in August 1984 must be excluded pursuant to CPL 30.30(4)(c) because the defendant's location was unknown and he was attempting to avoid prosecution. We disagree, and accordingly affirm the order of dismissal.
Where the People are not ready for trial within six months from the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony, a motion to dismiss on speedy trial grounds must be granted (CPL 30.30[1][a] ), unless the People can prove that certain periods of delay are excludable under CPL 30.30(4) (see, People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783). Delay due to a defendant's absence or unavailability should be excluded from the time in which the People must be ready for trial (CPL 30.30[4][c] ). "A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence" (CPL 30.30[4][c] ). The mere allegation of absence or unavailability is not sufficient for the time to be excludable under the statute (People v. McCaffery, 78 A.D.2d 1003, 433 N.Y.S.2d 909). The prosecution must further establish that the defendant was attempting to avoid apprehension or that he could not be located by exercise of due diligence.
In the instant case, the County Court correctly concluded that the time between August 13, 1982 and defendant's arrest in August 1984 was not excludable in determining defendant's speedy trial claim. There is no indication in the...
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...for forwarding addresses at the post office. By contrast, a case remarkably like the one before us, People v. Peterson, 115 A.D.2d 497, 498, 496 N.Y.S.2d 231, 232 (2d Dep't 1985), led to a finding of lack of diligence. In Peterson both of the defendant's addresses were known to the authorit......
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