People v. Rivera

• Citation: 553 N.Y.S.2d 682,160 A.D.2d 234
• Parties: The PEOPLE of the State of New York, Appellant, v. Juan RIVERA, Defendant-Respondent.
• Decision Date: 05 April 1990
• Court: New York Supreme Court Appellate Division

Page 682

553 N.Y.S.2d 682

160 A.D.2d 234

The PEOPLE of the State of New York, Appellant, v. Juan RIVERA, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

April 5, 1990.

M.C. Farrington, New York City, for appellant.

S.D. Gray, for defendant-respondent.

KUPFERMAN, J.P., and CARRO, ASCH, KASSAL and SMITH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Albert Williams, J.), entered on or about August 21, 1987, which granted defendant's motion to dismiss the indictment pursuant to CPL § 30.30, unanimously reversed, on the law, the motion denied, the indictment reinstated, and the matter remanded for further proceedings.

Pursuant to CPL § 30.30(1)(a) the People are required to announce their readiness for trial within six months ¹ of the commencement of a criminal proceeding charging the defendant with a felony, less certain enumerated excludable periods. See, People v. Kendzia, 64 N.Y.2d 331, 336, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985); CPL § 30.30(4). We have reviewed the record, and find that after subtracting those periods which must be excluded from computation of the six months within which the People were required to be ready for trial, the People's announcement of readiness was timely.

Of those periods in issue herein, we first consider the 22 day period from the filing of the indictment until defendant was arraigned. The People are entitled to a reasonable period of time between the filing of and arraignment on an indictment; such a "reasonable" time, which is, inter alia, to be used for notifying the defendant and arranging for his arraignment, is an excludable period of delay for speedy trial purposes. People v. Pappas, 128 A.D.2d 556, 558, 512 N.Y.S.2d 493 (2d Dept.1987); People v. Gaggi, 104 A.D.2d 422, 423, 478 N.Y.S.2d 732 (2d Dept.1984), appeal dismissed, 65 N.Y.2d 636, 491 N.Y.S.2d 159, 480 N.E.2d 748 (1985); People v. Brown, 113 A.D.2d 812, 813, 493 N.Y.S.2d 568 (1985), appeal denied, 67 N.Y.2d 649, 499 N.Y.S.2d 1045, 490 N.E.2d 561 (1986). In a determination similar to that once made by King Solomon, Supreme Court excluded six days and charged the remaining sixteen days to the People. The court, in excluding the same time period which the Fourth Department excluded in People v. Collins, 98 A.D.2d 947, 472 N.Y.S.2d 796 (4th Dept.), attempted to apply that Court's sub silentio rationale.

This division of time was error. Insofar as the actual number of days found to be reasonable, the rationale actually employed in the instant case is distinguishable from Collins. While the Collins court allowed the People six days of excludable time, this was the full period of delay; moreover, we note that there is no magic number of days or bright line rule in this regard. For instance, in People v. Pappas, supra, 128 A.D.2d at 558, 512 N.Y.S.2d 493, the Second Department determined that it was reasonable to exclude a ten day period between indictment and arraignment. See also, People v. Brown, supra, 113 A.D.2d at 813, 493 N.Y.S.2d 568 (ten days between reindictment and arraignment); compare, People v. Marshall, 91 A.D.2d 900, 901, 457 N.Y.S.2d 521 (1st Dept.1983) (holding period of six to eight days excludable where defense counsel "offered to have his clients surrender at a convenient day [following the issuance of arrest warrants upon return of an indictment by Grand Jury]"). We believe that under this fluid rule, twenty-two days was reasonable.

In any event, we hold that as a matter of law the entire twenty-two days is excludable and that sixteen days were improperly charged to the People. While defendant relies on our decision in People v. Connor, 106 A.D.2d 301, 483 N.Y.S.2d 11 (1st Dept.1984); aff'd, 65 N.Y.2d 852, 853, 493 N.Y.S.2d 307, 482 N.E.2d 1223 (1985), that case is distinguishable from that herein. In Connor, the People were charged with the delay between the indictment and arraignment where, although defendant and his attorney appeared for arraignment on the first one, and then a second date selected by the parties, the prosecutor "had inadvertently failed to ... calendar the case," and was, therefore, appropriately charged with the delay. In the instant case, however, the delay was visited upon defendant by the court, not the prosecutor, who had no role in calendaring the arraignment. Indeed, the court advised defendant when to appear, by sending a notice to him. The People should, therefore, not be charged with this delay, which was concededly occasioned by Supreme Court. See, People v. Worley, 66 N.Y.2d 523, 525, 498 N.Y.S.2d 116, 488 N.E.2d 1228 (1985); People v. Tavarez, 147 A.D.2d 355, 356, 537 N.Y.S.2d 517 (1st Dept.1989), appeal denied, 73 N.Y.2d 1022, 541 N.Y.S.2d 777, 539 N.E.2d 605 (1989) (holding that "just as court congestion is not chargeable to the People, neither should the unavailability of the court ... for its own convenience.") (citations omitted). Cf., People v. Toro, 151 A.D.2d 142, 144, 546 N.Y.S.2d 842 (1st...