Opinion
December 8, 1992
Appeal from the Supreme Court, New York County (Daniel P. FitzGerald, J.).
Concur — Murphy, P.J., Rosenberger and Rubin, JJ.
Although mindful of People ex rel. Sykes v Mitchell ( 184 A.D.2d 466), I believe that the facts of this case, at least in one major respect, are distinguishable. Specifically, I find the charging to the People of the 40 days beyond the date to which they requested an adjournment, a period necessitated by the court's vacation schedule, to be unjustified in law or logic. Such a finding makes a mockery of the speedy trial rule, which was never intended to charge court unavailability or a court's vacation schedule to the People. As has been said time and again, neither court congestion, court unavailability, nor delays for court convenience are chargeable to the People; CPL 30.30 addresses prosecutorial, not court, readiness. (People v Tavarez, 147 A.D.2d 355, 355-356, lv denied 73 N.Y.2d 1022; People v Green, 90 A.D.2d 705, 706; see also, People v Correa, 161 A.D.2d 391, 392, affd 77 N.Y.2d 930.)
Nor is it any answer to say the People could have filed a certificate of readiness during the court's absence for vacation. If answering "ready" means anything at all, other than the mere incantation of the word, there must be a court in session. A proper allocation of the 40 days in question would result in the reinstatement of the indictment.
Accordingly, I dissent and would reverse and reinstate the indictment.