People v. Roesch

• Decision Date: 19 February 1992
• Parties: The PEOPLE of the State of New York, v. Joseph ROESCH, Defendant.
• Court: New York Supreme Court

Page 916

582 N.Y.S.2d 916

153 Misc.2d 668

The PEOPLE of the State of New York, v. Joseph ROESCH, Defendant.

Supreme Court, Criminal Term Kings County, Part 16.

Feb. 19, 1992.

Charles J. Hynes, Dist. Atty. by Tess Allen, Brooklyn, for the people.

Harvey Mandelcorn, Brooklyn, for Joseph Roesch.

CAROLYN E. DEMAREST, Justice.

Defendant moves for dismissal based upon the grounds that he was denied a speedy trial pursuant to CPL § 210.20 and CPL § 30.30. Motion is granted.

Defendant was arraigned in Criminal Court on November 2, 1986. Time began to run against the People at that time. The indictment was filed on December 29, 1986. The time between the filing of the felony complaint and the filing of the indictment is chargeable to the People, for a total of 57 days.

The defendant was arraigned on the indictment in Supreme Court on January 8, 1987. While the period between the filing of the indictment and the arraignment is excludable under certain circumstances, such as the defendant being without counsel, there is no real evidence that any of these circumstances existed at this time. Accordingly, the 10 days between the filing of the indictment and the arraignment are chargeable to the People.

The People contend that speedy trial time stopped running at arraignment because an adjournment in the absence of an expressed objection by the defendant must be considered a consent adjournment. However, consent to an adjournment must be clearly expressed by the defendant or defense counsel to relieve the People of responsibility for that portion of the delay. People v. Liotta, 79 N.Y.2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82. On February 18, the defense filed motions, and the time stopped running to give the People time to answer. The 41 days between January 8 and February 18 are chargeable to the People. On February 27, the People announced ready and the time stopped running against the People.

The time between February 27, 1987, and March 7, 1988, is attributable to several factors including defense motions, defense requests, and substitution of defense counsel. None of this time is chargeable to the People.

On March 7, 1988, after a Bench conference, the Court adjourned the case to March 14, and charged the 7 day period to the People. On March 14, the People requested an adjournment. The Court adjourned to April 4 and again charged the adjournment to the People for a total of 21 days.

The one week adjournment from April 4 to April 11 appears to be Court set. The adjournment from April 11 to April 28 is attributable to the absence of defense counsel. The reasons for the adjournment on April 28 are unclear. The adjournment was to May 12. The number of days to which it is unclear who is to be charged are 14.

On May 12, there was an adjournment to June 20, 1988. While the People claim that the reasons for this adjournment are unclear, the minutes afford no other conclusion but the People's lack of readiness. It is certainly clear, from the People's own Memorandum of Law, that the Court admonished the People to be ready on the next date. These 39 days are chargeable to the People.

On June 20, the People were not ready. The 6 days between June 20 and June 26 are chargeable to the People.

On June 26, the People were again not ready and the Court dismissed the case. At this point, 181 days were chargeable to the People. (While the Appellate Division subsequently found that speedy trial time had not yet run, this was before the Liotta decision, which requires that 41 days be charged to the People that would not previously have been so charged in the absence of an objection by the defense).

The People served their Notice of Appeal on August 29, 1988. The defense asserts that the time between the dismissal and the filing of this notice is chargeable to the People. However, it is clear that a reasonable time period to file a timely appeal is excludable (CPL § 460.10).

On July 9, 1990, the Appellate Division reversed the dismissal and reinstated the case. People v. Roesch, 163 A.D.2d 429, 558 N.Y.S.2d 144 (2d Dep't, 1990). On July 12, the People were served with the Court's decision. Allowing a reasonable period of delay for the appeal (CPL § 30.30(4)(a)), none of the time between the dismissal and July 12, 1990, is chargeable to the People.

Pursuant to CPL § 30.30(5)(a), following an appeal, a criminal action is deemed to have commenced, for 30.30 purposes, on the date an order directing a "retrial" is final. This section does not apply here, however, as the appeal was not taken following a mistrial or conviction, but actually concerned the issue again at bar, dismissal on speedy trial grounds due to the People's lack of readiness for trial, which had not been established at the time the appeal was taken. Therefore, while the People cannot be charged for the time taken in prosecuting their appeal, once the appeal was decided and notice was given, the clock continued to run.

On October 10, 1990, the case was recalendared. The People contend that the time between July 12, 1990, and October 10, 1990, is not chargeable to the People citing as authority People v. Chang, 176 A.D.2d 951, 575 N.Y.S.2d 559 (2d Dep't, 1991). Chang dealt with the question of to whom a 150-day delay in restoring a case to calendar following the dismissal of a defendant's proceeding pursuant to CPLR Article 78 was chargeable. In Chang, the People were not charged for the delay, but that case is clearly distinguishable. In Chang, the People had announced their readiness prior to defendant's commencement of the proceeding. The Chang Court noted, supra at 952, 575 N.Y.S.2d 559, "The mere fact that the case was not restored to the Court's calendar had no bearing on the People's readiness to proceed. There is simply nothing else in the record to indicate that the People were not ready to proceed." In contrast, in the case at Bar, the People had become unready prior to the dismissal of the indictment and, in fact, it was the People's lack of readiness that caused the dismissal and appeal. (In fact, it is not clear to this Court when, if ever, the People have announced "ready" subsequent to their success on appeal. Since neither side has taken issue on this point, and this Court did not get the case until recently, the decision of the Court assumes, as the parties...