People v. Thompson
| Decision Date | 09 November 1981 |
| Docket Number | AP-7 |
| Parties | The PEOPLE of the State of New York v. Dariel THOMPSON, Defendant |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., New York County (Mary O'Donoghue, New York City, of counsel), for the People.
Alfredo Mendez, Legal Aid Society, New York City, for defendant.
The defendant moved to dismiss this action, pursuant to CPL § 170.30 (1)(e) and § 30.30 (1)(b), contending that the people were not ready for trial within 90 days of the commencement of the action because of their failure to convert the complaint to an information within that period. The people noted, however, that, during the same period, the defendant made pretrial discovery motions. The people contended that the entire period during which such motions were pending should be excluded (pursuant to CPL § 30.30 in computing the time within which the people were to be ready for trial, notwithstanding the fact that an information was not filed in the matter until 112 days after commencement of the action. The people argued that, by their method of counting, the time had not yet expired within which they were to be ready for trial. In their contention the people relied heavily upon People v. Callender, 101 Misc.2d 958, 422 N.Y.S.2d 611 (Crim. Ct., N.Y. County, 1979). For the reasons which follow herein, I respectfully decline to follow the holding ofPeople v. Callender, supra, and I grant the defendant's motion.
The following facts relevant to this issue are not in dispute:
This action, charging the defendant with criminal possession of stolen property in the third degree, a class A misdemeanor (Penal Law § 165.40) and unauthorized use of a vehicle, a class A misdemeanor (Penal Law § 165.05), was commenced against the defendant by the filing of a complaint on February 26, 1981. The defendant was arraigned on that day and was assigned counsel. The defendant did not then, nor did he at any time thereafter, waive prosecution by information. Nonetheless, on March 11, 1981, a motion schedule was established by the court for the making of pretrial motions. Pursuant to that schedule on April 1, 1981, the defendant moved for discovery and a bill of particulars, specifically reserving his right to make further motions. The people responded to the motions on April 14, 1981. Decision on the motions was reserved by the court until May 5, 1981, at which time certain discovery was ordered to be produced by the people and that matter set down for a hearing, pursuant to a motion to suppress, to be held on May 28, 1981. Since the people could not go forward with the hearing on May 28, 1981, the matter was adjourned for the hearing until June 17, 1981. On June 17, 1981, the defendant served and filed the instant motion to dismiss. Simultaneously the people filed an affidavit purporting to corroborate the factual allegations of the complaint and serve as an information.
The people contended that they answered "ready" and were prepared to go forward on June 17, 1981, some 112 days after commencement of the action. They argued that they were ready well within the period prescribed by CPL § 30.30, since in computing that period, the 78 days during which defendant's pretrial motions were pending should be excluded.
Clearly, if the period taken up by the defendant's motions and consequent court proceedings is not to be excluded in computing the time within which the people were to be ready for trial, then the defendant's motion must be granted and the matter dismissed. (See: People v. Duncan People v. Lee (N.Y.C. Crim. Ct., No. ONO63517, Egitto, J., April 1981]; People v. Phillips, People v. Colon I am of the opinion that under the circumstances of this case that period is not to be excluded and the motion must be granted.
The period during which defendant's motions are made, responded to and under consideration by the court is to be excluded in computing the period of the people's readiness only when such events are the cause of the delay in the people's readiness. The delay in the people's readiness must result from the event in question (See: CPL § 30.30 It is clear that the legislature, in drafting CPL § 30.30 as a "ready" rule, intended to assure speedy trials by imposing on the prosecutor a strict standard of diligence and blamelessness, excusing him only when delay was caused solely by the defendant or by events beyond the prosecutor's control. (See: People v Osgood, 52 N.Y.2d 37, 41, 436 N.Y.S.2d 213, 417 N.E.2d 507 People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331 Denzer, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL § 30.30, 1980-81, Supp., pp. 63-65.) The legislature did not contemplate that the periods of exclusion provided for in CPL § 30.30 (4) might be used, in advance, by a prosecutor to justify delay in completing fundamental tasks which remained totally within his control. The excludable events enumerated in subdivision 4 exist only as defenses available to the prosecutor to explain why he could do no more within the statutory time frame. 1 CPL § 30.30 was intended to eliminate unjustified delays; not to provide a reward or incentive for delay. (See: People v. Osgood, supra, at p. 45, 436 N.Y.S.2d 213, 417 N.E.2d 507.) In short, CPL § 30.30 (4) was never intended to allow the District Attorney to suspend work on fundamental tasks assigned to him and still within his capacity to accomplish simply because other events are taking place which he may view as potentially...
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