Opinion
May 10, 1990
Appeal from the Supreme Court, New York County, Ira Beal, J., Richard Carruthers, J.
Defendant alleged that 19 months had passed since he had been initially charged in the case and the People could not demonstrate any excludable time in the period. The People responded that, in fact, most of the time was excludable. Criminal Term's denial of this motion without a hearing was in error. Once the defendant alleges that the People have failed to answer ready within the time prescribed by CPL 30.30, the burden shifts to the People to establish that the delay is not properly chargeable to them (People v. Berkowitz, 50 N.Y.2d 333, 349). Where the papers submitted on a motion pursuant to CPL 30.30 raise a factual dispute, there must be a hearing (People v Santos, 68 N.Y.2d 859, 861). Similarly, a factual dispute mandating a hearing existed on defendant's claim that the same delay violated his rights to a speedy trial under CPL 30.20 and the US Constitution.
While defendant now asserts that preaccusatory delay between the sale of cocaine on July 3, 1985 and the arrest on April 23, 1986 should be "considered" in determining whether he was denied due process, defendant never presented such a claim to Criminal Term and it is thus unpreserved (see, People v. Whisby, 48 N.Y.2d 834, 836). However, we hold the appeal in abeyance pending a hearing to resolve the remainder of defendant's speedy trial claim.
Concur — Murphy, P.J., Carro, Rosenberger, Asch and Rubin, JJ.