Opinion
No. 8.
Argued January 7, 2009.
Decided February 11, 2009.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered January 29, 2008. The Appellate Division affirmed a judgment of the Supreme Court, Bronx County (Steven Lloyd Barrett, J., on speedy trial motion; Michael A. Gross, J, at trial and sentence), which had convicted defendant, upon a jury verdict, of attempted arson in the third degree.
People v Rouse, 47 AD3d 537, reversed.
Center for Appellate Litigation, New York City ( Peter Theis and Robert S. Dean of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx ( Jennifer Marinaccio, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.
Before: Acting Chief Judge CIPARICK and Judges GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be reversed and the indictment dismissed.
When a defendant is accused of a felony offense, CPL 30.30 requires the People to be ready for trial within six months of the commencement of the criminal action (CPL 30.30 [a]). CPL 30.30 (4) (f) excludes from the readiness time "the period during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with the permission of the court."
The People contend that the 30-day time period from October 5, 2004 to November 4, 2004 was properly chargeable to defendant because her codefendant was "without counsel." We disagree. Substitute counsel was appointed to codefendant at the conclusion of the October 5, 2004 calendar call, and thus codefendant had counsel during the adjournment period requested by the People. Nor does CPL 30.30 (4) (f) require the court to determine whether counsel was sufficiently familiar with the case in order for a defendant to be considered with legal representation for purposes of the statute.
Accordingly, because the People did not satisfy their statutory readiness obligation, the motion to dismiss the indictment pursuant to CPL 30.30 should have been granted.
In memorandum.
Order reversed, etc.