Opinion
January 23, 1996
Appeal from the Supreme Court, New York County (Frederic Berman, J.).
The CPL 30.30 motion at issue here was decided prior to the Court of Appeals' decision in People v Bolden ( 81 N.Y.2d 146). In Bolden the Court held, inter alia, that for purposes of CPL 30.30 (4) (c), as amended in 1984, the People, in order to successfully claim that a defendant's absence or unavailability was an excusable delay of their duty to answer ready for trial, are required to show "`due diligence'" in seeking the return of such defendant to court after a bench warrant issues, unless his location was unknown and he was seeking to avoid apprehension or prosecution (supra, at 148).
Consequently, the People's bare assertion in the motion court that defendant was absent and unavailable during the first seven months after the warrant issued, along with their failure to argue that they were duly diligent during that period, is fatal on this appeal ( People v Luperon, 85 N.Y.2d 71; People v Mace, 206 A.D.2d 296, 297, lv denied 84 N.Y.2d 869). Their assertion that the question of due diligence during that period was unpreserved for appeal is contrary to the record before us.
Thus we find the 188 day period from December 8, 1988 to June 14, 1989 to be chargeable to the People; when combined with the 50 day period from October 19, 1988 to December 8, 1988, which the People concede, the resulting 238 days of pretrial delay is well in excess of the 182 days permitted pursuant to CPL 30.30, and it is unnecessary to consider the parties' remaining contentions.
Concur — Ellerin, J.P., Ross, Nardelli, Williams and Mazzarelli, JJ.