People v. Vidal

• Decision Date: 11 February 1992
• Citation: 580 N.Y.S.2d 13,180 A.D.2d 447
• Parties: The PEOPLE of the State of New York, Respondent, v. Carlos VIDAL, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 13

580 N.Y.S.2d 13

180 A.D.2d 447

The PEOPLE of the State of New York, Respondent, v. Carlos VIDAL, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Feb. 11, 1992.

Before MURPHY, P.J., and CARRO, ROSENBERGER, ASCH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Ira F. Beal, J. on motions; Richard Carruthers, J. at trial), rendered August 15, 1988, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the first degree, and criminal use of drug paraphernalia, and sentencing him to concurrent terms of imprisonment of 15 years to life, 1 to 3 years, and 1 year, respectively, and order of the same court, entered on or about February 29, 1988, denying defendant's motion to dismiss the indictment pursuant to CPL 30.30, unanimously affirmed.

This appeal brings up for review the denial of defendant's motion to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial. Since defendant was arrested on April 24, 1986 and arraigned on June 3, 1986, forty days were properly charged to the People (People v. Correa, 77 N.Y.2d 930, 569 N.Y.S.2d 601, 572 N.E.2d 42). Several adjournments followed, which were not charged to the People and are not challenged. On August 12, the case was adjourned until August 15 because of the People's failure to respond to defendant's omnibus motion, resulting in three days being charged to the People. On August 15, the People still had not responded to the motion, and the case was adjourned until September 16. However, because the People filed their response to the motion on August 27, the People were properly charged with only 12 days, the period thereafter being excludable as time during which defendant's motion was under consideration by the court (CPL 30.30[4][a]; People v. Moorhead, 61 N.Y.2d 851, 473 N.Y.S.2d 967, 462 N.E.2d 144.

On September 16, 1986, and again on September 30, the case was adjourned at defendant's request so that he might formally retain private counsel, and also at the request of co-defendant's counsel because he was otherwise engaged. These periods properly were not charged to the People. On October 14, defendant and co-defendant both requested an adjournment, and thus no time was charged to the People (CPL 30.30[4][b]; People v. Worley, 66 N.Y.2d 523, 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228. Also, the period of time between September 23, 1986, when the People moved to amend the indictment and October 14, 1986, when that motion was granted, was properly excluded (People v. Fluellen, 160 A.D.2d 219, 223, 553 N.Y.S.2d 670). The record does not support defendant's contentions that these adjournments were requested only by co-defendant's counsel, and that the People failed to respond properly to his discovery demand, the People having made available for copying or testing tapes and other recordings within the meaning of CPL 240.20. Any delay, then, was caused by defendant.

On January 13, 1987, the People responded to defendant's motions for severance and other relief, although they did not at that time respond to co-defendant's speedy trial motion. Counsel himself, however, on that date requested an adjournment in order to reply to the People's response to his own motions. The adjournment until February 3, 1987 was therefore excludable. The People answered ready for trial February 3, 1987. Thereafter, the People maintained readiness (see, People v. Anderson, 105 A.D.2d 38, 482 N.Y.S.2d 745, affd 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231), the adjournments being at defendant's request. The adjournment from April 29, 1987 until May 12 was due to counsel's nonappearance. (CPL 30.30[4][f]; People v. Chang, 160 A.D.2d 469, 554 N.Y.S.2d 141, lv denied, 76 N.Y.2d 786, 559 N.Y.S.2d 991, 559 N.E.2d 685, and the next two adjournments were made because co-defendant's counsel was otherwise engaged (People v. Anderson, supra, 105 A.D.2d at 39, 482 N.Y.S.2d 745). Since the minutes for June 3, 1987 were not available, the People could not establish a reason for the next 48-day adjournment, and the Court properly charged them for the time up to July 21. On July 21, and August 3, the People answered not ready, and the court properly charged them with the next 13-day, and 15-day adjournments, until August 18, at which time it appears that there was an adjournment on...