People v. Radus

• Decision Date: 07 March 1985
• Citation: 127 Misc.2d 544,486 N.Y.S.2d 676
• Parties: The PEOPLE of the State of New York, v. Wendy S. RADUS, Defendant.
• Court: New York City Court

Page 676

486 N.Y.S.2d 676

127 Misc.2d 544

The PEOPLE of the State of New York, v. Wendy S. RADUS, Defendant.

City Court of Syracuse.

March 7, 1985.

Richard A. Hennessy, Jr., Dist. Atty., Onondaga County by Michael Marmor, Asst. Dist. Atty., for the People.

Joseph J. Heath, Syracuse, for defendant.

DECISION

LOUIS H. MARIANI, Judge.

The Defendant's motion to dismiss for denial of her right to speedy trial compels the Court discuss whether the time period between Defendant's initial arraignment on a felony complaint and its reduction to a misdemeanor is chargeable solely to the People.

Extensive affidavits were submitted by both counsel. Given the general agreement as to facts and dates, a hearing was unnecessary (People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704, 366 N.E.2d 794 (1977); People v. Thill, 75 A.D.2d 709, 427 N.Y.S.2d 125 (4th Dept.1980)) and the Court relies on the record created at the oral agreement, together with transcripts of prior court appearances.

The initial prosecution for the felony of criminal possession of marijuana in the second degree was commenced on September 7, 1983. We establish this date in accordance with the principles previously outlined by this Court in People v. Eckert, 117 Misc.2d 504, 458 N.Y.S.2d 494 (1983). ¹ The Defendant was arraigned and released on bail on September 8, 1983, with an initial preliminary hearing being scheduled for September 29, 1983. Five subsequent preliminary hearing dates were calendared, with both defense counsel and the People appearing. As conceded by the People during oral argument at "each one of them ... the People were not ready for preliminary examination," and a new date was then routinely scheduled. On March 26, 1984, some 198 days after this action was commenced, the Court granted the People's motion to reduce the pending felony to a misdemeanor charge of criminal possession of marijuana in the fourth degree. The People simultaneously announced their readiness for trial for the record. Defendant immediately asked the Court to consider the speedy trial ramifications of the lengthy pre-reduction delay and the instant motion was made returnable April 13, 1984.

CPL Sec. 30.30(5)(c) controls the standard for establishing speedy trial time limitations when an action is commenced by felony complaint and is later amended to an information. Basically, the People have six months within which to be ready on a felony. If the total amount of time chargeable to the People prior to the reduction to the misdemeanor exceeds six months, then the action must be dismissed. If this period is not six months, then the period of time within which the People must be ready is that designated for a misdemeanor and commences to run with the filing of the new instrument. In accordance with these principles, the People's opposition to Defendant's motion to dismiss is "wholly without merit."

A Defendant's statutory right to a speedy trial "relates to prosecutorial readiness and is not dependent in any way on whether defendant has expressed his readiness for trial or whether defendant has been prejudiced by delay." People v. Thill, supra 75 A.D.2d at 710, 427 N.Y.S.2d 125 citing People v. Hamilton, 46 N.Y.2d 932, 415 N.Y.S.2d 208, 388 N.E.2d 345 (1979). The record is clear that the People concede they were never ready to proceed with a preliminary hearing, no less to trial. "Clearly in felony cases, until an indictment is returned, the People are not in a position to answer that they are ready for trial." People v. Zisis, 113 Misc.2d 998, 999, 450 N.Y.S.2d 655 (1982).

The People contend that the Defendant is chargeable with any delays that the defense requested or consented to. We do not need to reject this general theory in this case as we are only able to find support for same in post-indictment...