People v. Sivano
| Decision Date | 12 August 1997 |
| Citation | 666 N.Y.S.2d 875,174 Misc.2d 427 |
| Parties | , 1997 N.Y. Slip Op. 97,640 The PEOPLE of the State of New York, Appellant, v. Frank SIVANO, Respondent. |
| Court | New York Supreme Court — Appellate Term |
Richard A. Brown, District Attorney of Queens County, Kew Gardens (Andrew Zwerling and Elizabeth Fox, of counsel), for appellant.
Victor Knapp, Kew Gardens, for respondent.
Before KASSOFF, P.J., and ARONIN and CHETTA, JJ.
Order unanimously reversed on the law and information reinstated.
On December 5, 1995, Police Officer James Fitzpatrick and Police Officer Robert Filippi were in the parking lot of Hyland Park, Queens County, patrolling the park for stolen vehicles. Officer Fitzpatrick observed a van with the engine running and no one in the driver's seat. When the officer approached the van, he peered into the rear window and allegedly observed defendant with his pants down lying on top of his 15 year old stepdaughter thrusting his hips between the legs of the child. Defendant and the child were removed from the van and defendant was arrested.
On December 6, 1995 defendant was arraigned in the Criminal Court of the City of New York, Queens County, upon a misdemeanor complaint charging him with endangering the welfare of a child (Penal Law § 260.10(1)).
Due to the failure of the complainant and her mother to cooperate with the prosecution, the People were unable to obtain non hearsay allegations particularly as to the statutory element of age.
In order to satisfy this requirement, on January 25, 1996, the District Attorney filed a superseding information based upon the arresting officer's observations and an uncertified Bureau of Child Welfare report.
The defense disputed the conversion on hearsay grounds. On February 1, 1996, at the court's request, the People filed a written motion in support of the conversion. Opposition was submitted and on March 8, 1996, the court rendered its decision denying the application.
The same day, the People filed a second superseding information this time based on certified school records. The court deemed the instrument an information.
Thereafter, defendant moved to dismiss for a violation of CPL 30.30. The court granted the application, finding 103 days' delay chargeable to the prosecution. In coming to a decision the court charged the prosecution with 53 days' delay for the period of January 25, 1996 to March 8, 1996, the day the case was adjourned for motions until the day of the court's decision.
The court noted in the decision that it had previously advised the District Attorney that the period of delay caused by this motion would be charged to the People unless the court granted the application.
CPL 30.30(4)(a) provides in pertinent part:
"In computing the time in which the people must be ready for trial ... the following periods must be excluded:
(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to:
... pretrial motions ... and the period during which such matters are under consideration by the court ..."
The present record clearly demonstrates that the only reason for the delay, from February 1, 1996, the date the People concede in their appellate brief that the motion was made,...
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People v. Lewis
...pre-trial motion, including those related to discovery, is excludable (see CPL 30.30 [4] [a] ; see also People v. Sivano , 174 Misc. 2d 427, 666 N.Y.S.2d 875 [App. Term, 2nd Dept. 1997] (all pretrial motions excluded from speedy trial count)).5 This provision was not amended by the recent r......
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People v. Varuzzi
...that the pre-trial motion was filed by the People (30.30(4)(a); People v. Barham, 216 A.D.2d 477, 628 N.Y.S.2d 554; People v. Sivano, 174 Misc.2d 427, 666 N.Y.S.2d 875). November 13, 1997--December 5, 1997 ... The Court heard argument on the above-mentioned motion and reserved decision. The......
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...under CPL Sec. 30.30(4)(a). See, People v. Hodges, 12 A.D.3d 527, 784 N.Y.S.2d 638 (2d Dept., 2004); People v. Sivano, 174 Misc.2d 427, 429, 666 N.Y.S.2d 875 (App. Term, 1st Dept., 1997). Thus, since the People are charged with a total of 34 days in this matter, Defendant's motion to dismis......
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...under CPL Sec. 30.30(4)(a). See, People v. Hodges, 12 AD3d 527, 784 N.Y.S.2d 638 (2d Dept., 2004); People v. Sivano, 174 Misc.2d 427, 429, 666 N.Y.S.2d 875 (App.Term, 1st Dept., 1997). Thus, if we add the 14 days charged between September 7, 2011 and November 3, 2011 to the 7 days charged b......