People v. Santiago

• Decision Date: 11 July 1983
• Citation: 96 A.D.2d 720,465 N.Y.S.2d 364
• Parties: PEOPLE of the State of New York, Respondent, v. Manuel SANTIAGO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 364

465 N.Y.S.2d 364

96 A.D.2d 720

PEOPLE of the State of New York, Respondent, v. Manuel SANTIAGO, Appellant.

Supreme Court, Appellate Division Fourth Department.

July 11, 1983.

Philip S. Glickman, Rochester, for appellant.

Donald O. Chesworth, Jr. by Wendy Lehmann, Rochester, for respondent.

Before HANCOCK, J.P., and CALLAHAN, DENMAN, MOULE and SCHNEPP, JJ.

MEMORANDUM:

Defendant's motion to dismiss pursuant to CPL 30.30 should have been granted because the People did not demonstrate their readiness for trial within the statutory period (see People v. Brothers, 50 N.Y.2d 413, 416, 429 N.Y.S.2d 558, 407 N.E.2d 405; People v. Hamilton, 46 N.Y.2d 932, 933, 415 N.Y.S.2d 208, 388 N.E.2d 345).

Defendant was indicted on September 15, 1977. He was arrested on September 20 and remained in custody until November 22, 1977. The record indicates that nothing else occurred until August 26, 1978 when defense counsel filed notice of motion for dismissal pursuant to CPL 30.30. During argument on the motion, defense counsel stated that the case had been placed on the trial calendar on August 29, three days after he had filed his motion, and that statement was not disputed. The district attorney replied that it was a question of semantics and that the case had appeared on a chronological list of cases and had moved up the list in orderly progression.

In his memorandum decision denying the motion, the Trial Judge took judicial notice of the practice in Monroe County Court whereby the clerk places a case at the foot of a trial calendar upon expiration of the 45-day pretrial motion period. The cases then move up in chronological order. It thus appears that neither the court nor counsel take any affirmative steps to place the case on the calendar. Rather, it is a ministerial act performed by a clerk of the court.

In order to avoid dismissal of an indictment pursuant to CPL 30.30, the People must make an affirmative showing on the record that they are ready for trial within the statutory period (see People v. Hamilton, 46 N.Y.2d 932, 933, 415 N.Y.S.2d 208, 388 N.E.2d 345, supra ). In People v. Brothers, 50 N.Y.2d 413, 429 N.Y.S.2d 558, 407 N.E.2d 405, supra, the court held that the placing of a case on a "ready reserve" trial calendar did not comply with that requirement as there was "no record proof of any contemporaneous communication of (the district attorney's) readiness within the standard enunciated in People v. Hamilton * * * " (People v. Brothers, ...