PRESENT: SCUDDER, P. J., HURLBUTT, MARTOCHE, SMITH, AND CENTRA, JJ.

DOCKET NO. OP 08-02383

PEOPLE OF THE STATE OF NEW YORK EX REL. ROBIN SMITH, PETITIONER, V PHILIP C. POVERO, SHERIFF OF THE COUNTY OF ONTARIO, OR OTHER PERSON HAVING CUSTODY OF ROBIN SMITH, RESPONDENT.

Relator having commenced a habeas corpus proceeding in this Court,

Now, upon reading and filing the affirmation of Marc Infantino dated October 19, 2008, the proposed order to show cause with proof of service thereof, the petition verified October 20, 2008, the opposing affirmation of James B. Ritts dated December 23, 2008, the reply affirmation of Marc Infantino dated January 12, 2009, due deliberation having been had thereon,

It is hereby ORDERED that the petition be, and the same hereby is, dismissed.

Memorandum: We dismiss this original habeas corpus petition on the ground that relator is no longer entitled to habeas corpus relief. Our determination does not reflect approval of the reasoning of County Court, which denied the application of relator to be released on his own recognizance due to the People's failure to hold a preliminary hearing within the time set forth in CPL 180.80. That time began to run upon the arrest of relator, not upon the assignment of counsel or upon any request by assigned counsel for a preliminary hearing. The fact that the court in which relator was arraigned ordinarily sits only once or twice per month does not constitute "good cause" in every case within the meaning of CPL 180.80 [3] for the failure to hold a timely preliminary hearing (see CPL 180.10 [4]; cf. People v Sweeney, 143 Misc 2d 175 [1989]). Nevertheless, because relator has since been indicted, the habeas corpus petition must be dismissed as moot (see People ex rel. Vancour v Scoralick, 140 AD2d 658 [1988]; see also People v Damphier, 51 AD3d 1146, 1147 [2008], lv denied 11 NY3d 787 [2008]).

Entered: March 3, 2009

JoAnn M. Wahl, Clerk