People v. Pittman
| Decision Date | 11 June 1996 |
| Citation | 228 A.D.2d 225,643 N.Y.S.2d 560 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Richard PITTMAN, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Michael A. Scotto, for Appellant.
Elizabeth Manning, for Defendant-Respondent.
Before MILONAS, J.P., and ROSENBERGER, RUBIN, KUPFERMAN and TOM, JJ.
Order, Supreme Court, New York County (Charles Tejada, J.), entered September 27, 1994, which dismissed the indictment charging the defendant with criminal possession of a weapon in the third degree in the interest of justice, unanimously reversed, on the law, and the facts, the motion is denied, the indictment and jury verdict are reinstated, and the matter is remanded for sentence.
The defendant was arrested after a loaded .38 caliber revolver fell out of his pocket as he was playing with one of his friends at the Staten Island ferry terminal. A speed loader with extra bullets for a different weapon was also recovered from him. He gave a written statement to the police in which he claimed that he carried the gun for protection after having been the victim of two gunpoint robberies. At the time of his arrest, the defendant was on probation following a 1991 conviction for selling two glassine envelopes of heroin to an undercover officer near an elementary school. At trial, the defendant related that he had obtained the gun from a seventeen year old friend, and that he planned to exchange the gun for cash at a local precinct as part of the gun amnesty program there.
The jury rejected the defendant's account, though instructed on the law concerning temporary lawful possession, by convicting him of the sole count of criminal possession of a weapon in the third degree. The case was adjourned, and on the scheduled sentencing date, the defendant moved to dismiss the charges, in the interest of justice, claiming as cause for the delay in moving his decision to exercise his right to go to trial. At an ensuing hearing, two witnesses testified to the defendant's promising career as a musician, and his concern for his family. The defendant also testified that he was trying to help society by returning the gun, that he had made a mistake with respect to his first crime, and that, in retrospect, he would have done things differently and not even taken the gun. Although made nine months after the defendant's arraignment, the court granted the defendant's motion to dismiss. We reverse this determination.
The defendant's CPL 210.40(1) motion was untimely because not made within forty-five days of arraignment (CPL 255.10(1); 255.20). Such motions are intended to be pre-trial motions, and the delay here was not adequately excused by the defendant's assertion that he wanted to avail himself of his right to go to trial. His appellate assertion that the delay was really due to the imminent release of his music album is equally spurious (CPL 255.20(3); People v. Longwood, 116 A.D.2d 590, 591, 497 N.Y.S.2d 450).
On the merits, the decision to dismiss the indictment was also an abuse...
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