Summary
In People v Meierdiercks (68 N.Y.2d 613, supra) and People v Worley (66 N.Y.2d 523, supra), each defendant was in a position to know that the prosecutor had not yet obtained an accusatory instrument capable of establishing trial jurisdiction.
Summary of this case from People v. BeyahOpinion
Decided June 3, 1986
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Francis A. Nicolai, J., Theodore S. Kasler, J.
Carl A. Vergari, District Attorney (Richard E. Weill of counsel), for appellant in first above-entitled action.
William I. Aronwald for respondent in first above-entitled action.
Charles D. Halvorsen and Rose H. Sconiers for appellants in second and third above-entitled actions.
Richard J. Arcara, District Attorney (J. Michael Marion of counsel), for respondent in second and third above-entitled actions.
MEMORANDUM.
The orders of the Appellate Division should be affirmed.
In the three appeals before us, defendants sought dismissal of indictments pursuant to CPL 30.30, alleging lengthy preindictment delays attributable in material part to adjournments of preliminary hearings. In the first case, People v Meierdiercks, the adjournment was ordered sua sponte by the local criminal court, after defense counsel had pointed out that the complaint did not accurately describe the purportedly stolen check. No motion was made by defendant, and the adjournment was neither requested nor consented to by her or her counsel. By contrast, in People v Boyd and People v Harris, defendants requested or consented to adjournments of preliminary hearings, thus expressly waiving any objection to those delays (CPL 30.30 [b]). While defendants in all three cases contend that the periods of delay should be included because they did not prevent the People from seeking indictments, as we recognized in People v Worley ( 66 N.Y.2d 523, 527) the controlling consideration is not whether defendants' actions prevented the People from obtaining accusatory instruments sufficient for trial, but whether defendants waived the delay in the proceedings by requesting or consenting to the adjournments. Thus, in Meierdiercks, where there was no waiver by defendant, the sua sponte adjournment period was properly charged against the People and the indictment dismissed, and in People v Boyd and People v Harris, where there were express waivers, the delay periods were correctly excluded and defendants' motions to dismiss properly denied.
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.
In each case: On review of submissions pursuant to section 500.4 of the rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.