Opinion
May 26, 1978
Appeal from the Erie County Court.
Present — Moule, J.P., Cardamone, Simons, Hancock, Jr., and Denman, JJ.
Case held, decision reserved and matter remitted to Erie County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment of conviction entered after a plea of guilty to attempted arson in the fourth degree, alleging that she was denied her right to a speedy trial pursuant to CPL 30.30 (subd 1, par [a]) and that the indictment should have been dismissed. Following her arraignment on this indictment on June 4, 1976 defendant was returned to the Federal Correctional Institution at Alderson, West Virginia, to resume serving a sentence on unrelated Federal charges. She was not returned to New York until January 22, 1977, more than six months after arraignment. Following her return an additional period in excess of six months elapsed prior to her entry of a plea. CPL 30.30 mandates dismissal of the indictment if the People are not ready for trial within six months of the commencement of the criminal proceedings and are unable to establish periods of exclusion under the statute (People v Washington, 43 N.Y.2d 772; People v Sturgis, 38 N.Y.2d 625; People v Blackford, 62 A.D.2d 1173; People v Bellach, 58 A.D.2d 613). The record before us is incomplete with respect to the efforts by the District Attorney to have the defendant returned for trial and with respect to his efforts to bring her to trial following her return to the jurisdiction. The defendant moved for dismissal pursuant to CPL 30.30 (subd 1, par [a]) and the motion was denied without findings or conclusions concerning the various periods in controversy. In view of the proscriptive limits of CPL 30.30 (subd 1, par [a]), the burden is on the People to show their readiness for trial within the six-month period after deducting statutorily excludable periods under CPL 30.30 (subd 4) (People v Washington, supra; People v Sturgis, supra; People v Bellach, supra). Consequently the case is remanded for further proceedings (see People v McLaurin, 38 N.Y.2d 123; People v Bellach, supra).