People v. Rodriguez

• Decision Date: 04 May 1981
• Citation: 81 A.D.2d 840,438 N.Y.S.2d 845
• Parties: The PEOPLE, etc., Appellant, v. Jose RODRIGUEZ, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 845

438 N.Y.S.2d 845

81 A.D.2d 840

The PEOPLE, etc., Appellant, v. Jose RODRIGUEZ, Respondent.

Supreme Court, Appellate Division,

Second Department.

May 4, 1981.

Eugene Gold, Dist. Atty., Brooklyn (Jason L. Shaw and Joel M. Goldberg, Brooklyn, of counsel), for appellant.

A. Irene Elliott, Brooklyn, for respondent.

Before DAMIANI, J. P., and GIBBONS, GULOTTA and THOMPSON, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County, entered October 15, 1980, which granted defendant's motion to dismiss the indictment against him upon the ground that defendant was denied a speedy trial.

Order reversed on the law, motion denied and indictment reinstated. The matter is remitted to Criminal Term for further proceedings on the indictment.

Criminal Term erred in granting defendant's motion to dismiss the indictment, charging him with manslaughter in the first degree and criminal possession of a weapon in the fourth degree, based on a denial of defendant's right to a speedy trial.

With regard to any statutory claim under CPL 30.30, it should be noted that defendant did not raise this issue in his motion papers, but only alleged a denial of his constitutional right to a speedy trial. Indeed, any claim predicated upon defendant's statutory rights would be without merit, since the statute is not applicable when certain crimes, including manslaughter in the first degree, are charged in an indictment (see CPL 30.30, subd. 3, par. see, also, People v. Johnson, 38 N.Y.2d 271, 278-279, n. 3, 379 N.Y.S.2d 735, 342 N.E.2d 525; People v. Smith, 53 A.D.2d 652, 384 N.Y.S.2d 488).

With respect to the alleged denial of the constitutional right to a speedy trial, the court in People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 set forth five factors to consider in determining whether a defendant's right has been violated: "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay" (see, also, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101). Looking at each factor in detail, we note first that only approximately eight and one-half months elapsed between the date of incarceration (December 14, 1979) and the final arguments on the motion to dismiss (August 28, 1980). Speedy trial claims have been denied where the period of pretrial delay was substantially longer (see People v. Perez, 42 N.Y.2d 971, 398 N.Y.S.2d 269, 367 N.E.2d 867 People v. Grant, 63 A.D.2d 575, 404 N.Y.S.2d 632 People v. Smith, 60 A.D.2d 974, 401 N.Y.S.2d 633 Moreover, of this total, five months were the result of adjournments granted on consent, and the balance was necessary in order for the People to locate an...