People v. Salsedo

• Decision Date: 08 January 1985
• Parties: The PEOPLE of the State of New York, Appellant, v. Nelson SALSEDO, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 299

483 N.Y.S.2d 299

107 A.D.2d 579

The PEOPLE of the State of New York, Appellant, v. Nelson SALSEDO, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Jan. 8, 1985.

S. Corkery, New York City, for appellant.

R.S. Sharfman, New York City, for defendant-respondent.

Before SANDLER, J.P., and ROSS, ASCH, MILONAS and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered February 9, 1984, which granted defendant's motion to dismiss the indictment, pursuant to CPL section 30.30, is unanimously reversed, on the law, the motion is denied, the indictment is reinstated, and the matter is remanded for further proceedings.

During the evening of January 29, 1983, at West 175th Street and Amsterdam Avenue in Manhattan, New York City Police Officers Benitez and Moreno observed the defendant in possession of a stolen black 1980 Audi automobile. Thereafter, on February 3, 1983, Officer Benitez arrested the defendant and charged him in a felony complaint with the crime of criminal possession of stolen property in the first degree (Penal Law section 165.50). Subsequent to defendant's arraignment in Criminal Court on February 4, 1983, he was paroled and the case was adjourned to February 22, 1983. Before this adjourned date, defendant was indicted for the crime set forth in the complaint. As a result of the defendant's failure to appear on February 22, 1983, a bench warrant was issued. Thereafter, defendant remained absent for almost two months until he voluntarily returned on April 20, 1983. At his April 20th court appearance, the defendant was given until May 23, 1983 to make pre-trial motions. Then, on May 23, 1983, at the request of the People the case was adjourned to June 14, 1983. On June 14th the People announced, in good faith, that they were ready for trial.

Between June 14, and November 29, 1983, there were seven adjournments, and, the record before us does not indicate the reason for them.

As the trial was about to begin on November 30, 1983, the trial Assistant District Attorney advised the defendant that he had just learned that Officer Moreno, a potential trial witness, had made a pre-trial identification of the defendant, at a police arranged show-up that took place shortly after the arrest. It is undisputed that this was the first notice that defendant had received of the identification by Moreno, and immediately defendant moved to suppress it. Even though the People were prepared to proceed with a Wade hearing that day, Criminal Term put over the hearing until December 14, 1983 since the defendant desired to have Moreno testify, and this officer was unavailable due to illness.

Less than a week before this Wade hearing was scheduled to start, the defendant moved to dismiss the indictment, upon the ground that the People's late notice had denied him a speedy trial, pursuant to CPL section 30.30. In their papers in opposition to the motion, the People, inter alia, reiterated that they were ready for trial, with or without the identification testimony from Moreno.

Criminal Term found that the People's notice, which had been given, on the eve of trial, served to invalidate their earlier statement of readiness. In view of...