Opinion
2008-1144 N CR.
Decided on May 11, 2009.
Appeal from an order of the District Court of Nassau County, First District (Susan T. Kluewer, J.), dated May 5, 2008. The order granted defendant's motion to dismiss the accusatory instruments.
Order reversed, on the law, defendant's motion to dismiss the accusatory instruments denied, accusatory instruments reinstated and matter remitted to the District Court for all further proceedings thereon.
PRESENT: RUDOLPH, P.J., TANENBAUM and MOLIA, JJ.
Defendant was charged in separate accusatory instruments with endangering the welfare of a child (Penal Law § 260.10) and sexual abuse in the third degree (Penal Law § 130.55). He moved to dismiss the accusatory instruments on the ground that he was denied his right to a speedy trial pursuant to CPL 30.30 (1) (b). The District Court granted the motion, finding that 99 days were chargeable to the People. On appeal, the People take issue only with the court's charging them with the adjournment of April 20, 2007 to April 24, 2007 and the time period from September 5, 2007 to October 5, 2007, the date on which they filed a pre-trial motion.
On April 20, 2007, the People filed the two accusatory instruments, thereby commencing the criminal action (CPL 1.20). On that same day, defendant was arraigned on said accusatory instruments, and the court adjourned the case to April 24, 2007. Contrary to the People's contention, the record does not reflect that defendant expressly requested or acquiesced to the adjournment ( see CPL 30.30 [b]; People v Garrett, 182 AD2d 492). Thus, the District Court correctly found that said adjournment was chargeable to the People.
On August 3, 2007, the People filed a statement of readiness. As a result, the speedy trial clock was tolled from August 3, 2007 until the following adjourned date of September 5, 2007 ( see People v Stirrup, 91 NY2d 434; People v Douglas, 264 AD2d 671). We note that we find no merit to defendant's argument that the period between August 3, 2007 and September 5, 2007 is chargeable to the People. On September 5, 2007, the People requested an adjournment to make a pre-trial motion, and the court adjourned the case to October 9, 2007. On October 5, 2007, the People filed their motion. Since this adjournment was based on the People's expressed intention to file a pre-trial motion and was for a reasonable period of time, it is not chargeable to the People for CPL 30.30 purposes ( see CPL 30.30 [a]; People v Reed, 19 AD3d 312; People v Sivano, 174 Misc 2d 427 [App Term, 2d 11th Jud Dists 1997]). Thus, the District Court improperly charged the People with the 30-day time period from September 5, 2007 to October 5, 2007, the date on which they filed their motion.
Accordingly, as the People were chargeable with, at most, 69 days, defendant's motion to dismiss the accusatory instruments based on CPL 30.30 grounds should have been denied.
Rudolph, P.J., Tanenbaum and Molia, JJ., concur.