Opinion
November 13, 1984
Appeal from the County Court, Westchester County (Martin, J.).
Judgment modified, as a matter of discretion in the interest of justice, by reducing the term of imprisonment of 7 1/2 to 15 years to a term of imprisonment of 5 to 10 years. As so modified, judgment affirmed.
Although a felony complaint was filed on August 5, 1981, defendant was not indicted until April 16, 1982, and was not arraigned on that indictment until April 26, 1982. This extensive delay was due to the fact that defendant was a fugitive and was not apprehended until just prior to his indictment. Defendant claims that under CPL 30.30 his indictment should be dismissed since there was a delay of more than six months between the commencement of proceedings against him and the announcement of the People's readiness to prosecute. ( People v Sturgis, 38 N.Y.2d 625. ) Defendant claims that his absence in no way impeded the People from securing an indictment and thus the People should be charged with the delay.
However, this court recently held in People v Bratton ( 103 A.D.2d 368) that the Westchester County District Attorney's policy of not indicting defendants who are unavailable for prosecution was a reasonable exception to the Sturgis rule. The rationale of Sturgis ( supra) is an attempt to eliminate unjustified delay created by prosecutorial inefficiency. In our view, the nonindictment policy adopted by the Westchester County District Attorney serves to enhance the capacity and the ability to efficiently prosecute those defendants who are available without infringing unreasonably on the rights of those who are not ( People v Bratton, supra).
The facts of this case indicate that the Larchmont Police Department exercised due diligence in seeking to locate defendant (see People v Manley, 63 A.D.2d 988). Thus, since Westchester is a jurisdiction that adheres to a policy of not indicting fugitives, and defendant's absence was a factor beyond their control, the People may not be charged with the period of the absence ( People v Bratton, supra). The hearing court therefore correctly denied defendant's motion to dismiss the indictment.
We find the sentence imposed on the robbery conviction to be excessive to the extent indicated herein.
We have considered defendant's other claims and find them to be without merit. Weinstein, J.P., Brown, Boyers and Eiber, JJ., concur.