Opinion
2009-435 S CR.
Decided December 15, 2009.
Appeal from an order of the District Court of Suffolk County, First District (Toni A. Bean, J.), dated February 4, 2009. The order granted defendant's motion to dismiss the accusatory instrument on the ground that she was denied her statutory right to a speedy trial.
ORDERED that the order is reversed, on the law, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is denied, the accusatory instrument is reinstated and the matter is remitted to the District Court for all further proceedings thereon.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ.
On March 13, 2008, the People filed an accusatory instrument charging defendant with leaving the scene of an incident without reporting same (Vehicle and Traffic Law § 600 [a]). Thereafter, defendant moved to dismiss the accusatory instrument on the ground that it was jurisdictionally defective. By order dated August 11, 2008, the District Court granted the motion. On September 26, 2008, the People filed a new accusatory instrument charging defendant with the same misdemeanor. Defendant subsequently moved to dismiss the latter accusatory instrument on the ground that she was denied her statutory right to a speedy trial (CPL 30.30 [b]). By order dated February 4, 2009, the District Court granted defendant's motion, finding that more than 90 days had elapsed since the filing of the original accusatory instrument. The instant appeal by the People ensued.
Upon a review of the record, we find that defendant was not denied her statutory right to a speedy trial (CPL 30.30 [b]). Since defendant was charged with a misdemeanor punishable by a sentence of imprisonment of more than three months, the People were required to be ready for trial within 90 days of the commencement of the action (CPL 30.30 [b]). In the case at bar, the criminal action was commenced for speedy trial purposes on March 13, 2008, the day on which the original, albeit jurisdictionally defective, accusatory instrument was filed ( see People v Clayton , 39 AD3d 873 ; People v Reyes , 24 Misc 3d 51 [App Term, 9th 10th Jud Dists 2009]).
Although the jurisdictionally defective accusatory instrument started the speedy trial clock, the entire period between the filing of the jurisdictionally defective accusatory instrument and the filing of the jurisdictionally sufficient accusatory instrument was not automatically chargeable to the People ( see People v White, 211 AD2d 982; People v Kanter, 173 AD2d 560; Reyes, 24 Misc 3d 51). Hence, this time period must be examined.
Since the original accusatory instrument was jurisdictionally defective, any statement of readiness made by the People was illusory because the People could not validly declare themselves ready until there was an accusatory instrument sufficient for trial ( see generally People v Kendzia, 64 NY2d 331; see also Reyes, 24 Misc 3d 51). Thus, the adjournments from March 13, 2008 through April 18, 2008 were chargeable to the People. The next three adjournments, covering the period from April 18, 2008 through July 3, 2008, were either made at defendant's request or when defendant was absent. Therefore, said adjournments were not chargeable to the People ( see CPL 30.30 [b], [c]; People v Devore , 65 AD3d 695 ; People v Martucci , 22 Misc 3d 137 [A], 2009 NY Slip Op 50336[U] [App Term, 9th 10th Jud Dists 2009]). Since there was still no valid statement of readiness by the People, the next adjournment, from July 3, 2008 to July 7, 2008, was chargeable to the People. On July 7, 2008, defendant requested an adjournment to make a motion, and a motion schedule was set up by the court. On August 11, 2008, the court granted defendant's motion to dismiss the original accusatory instrument. This entire time period was not chargeable to the People as it was for motion practice and also included time during which the court was considering defendant's motion ( see CPL 30.30 [a]; People v Moolenaar, 262 AD2d 60).
Since there was no accusatory instrument upon which the People could proceed from August 11, 2008 until September 26, 2008, the People were not ready ( see People v Cortes, 80 NY2d 201; People v Biamonte , 19 Misc 3d 139 [A], 2008 NY Slip Op 50896[U] [App Term, 9th 10th Jud Dists 2008]) and said 46-day period is chargeable to the People ( see generally People v Worley, 201 AD2d 520; People v Bryant, 153 AD2d 636). On September 26, 2008, the People filed a new accusatory instrument, the People declared readiness and the case was adjourned to October 24, 2008. Thus, that adjournment was not chargeable to the People.
The next adjournment, from October 24, 2008 through November 21, 2008, was made at defendant's request and, therefore, was not chargeable to the People ( see CPL 30.30 [b]). On October 29, 2008, defendant moved to dismiss the accusatory instrument on the ground that she was denied her right to a speedy trial.
Since the People were chargeable with a total of 86 days, the order granting defendant's motion to dismiss the accusatory instrument on the ground that defendant was denied her right to a speedy trial (CPL 30.30 [b]) is reversed, defendant's motion is denied, the accusatory instrument is reinstated and the matter is remitted to the District Court for all further proceedings thereon.
Tanenbaum, J.P., Molia and Iannacci, JJ., concur.