This case presents what appears to be a novel CPL § 30.30 issue. Defendant was arrested for DWI in the early morning hours of July 4, 2003. Shortly after the arrest, he was arraigned in Town Court. According to Town Court's arraignment memorandum, defendant told the court that he wanted an attorney. It appears that defendant said he would hire an attorney since there is no indication that he requested assigned counsel, although neither party has expressly addressed that question.

On July 16, 2003, Town Court sent a divestiture form to County Court. The divestiture

form gives no indication that a preliminary hearing was either held or waived and it is unclear how or why the case was sent to County Court. The divestiture form also indicates that [*2]defendant was represented by the Public Defender. Presumably, a copy of the divestiture form was sent to the District Attorney.

On August 4, 2003, the District Attorney sent a written plea offer to the Public Defender. On August 11, 2003, the Public Defender responded, "requesting additional time to respond" and "waiving our CPL § 30.30 time." Apparently, nothing further happened until March 11, 2004, when the District Attorney sent defendant and the Public Defender a notice that the case would be presented to the Grand Jury on April 1, 2004.

On March 31, 2004, the People received a fax from attorney Matthew Swenson advising that he represented defendant and that defendant had never "personally" waived his 30.30 rights. Included with the fax was an affidavit from the Public Defender stating that his office had never represented defendant and that the only reason the Public Defender had sent a 30.30 waiver to the People was because they had received the People's letter of August 4, 2003 and assumed that the case had been referred to their office.

On April 1, 2004, the People presented this case to the Grand Jury. An indictment was filed on April 22, 2004 and the People filed a statement of readiness on that date. Defendant now moves to dismiss on the grounds that the 293 days from the commencement of the criminal action to the People's declaration of readiness is a clear violation of the six months required by CPL § 30.30 and that the Public Defender's office cannot waive 30.30 time for a client it does not represent.

The People, with unwarranted hyperbole, contend that they "should not be punished by gross negligence or misfeasance of the Public Defender's office" and that they should have been

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able to rely on the 30.30 waiver by the Public Defender. Thus, they claim that this factual scenario constitutes an exceptional circumstance under CPL § 30.30(4)(g). Alternatively, they contend that the time is excludable under CPL § 30.30(4)(f) as a period during which defendant was without counsel through no fault of the court. The court rejects the latter contention as totally unsupported factually.

The Fourth Department has established that 30.30 periods can be waived by counsel

(see People v. Jenkins, 302 AD2d 978, 754 NYS2d 796; People v. Trepasso, 197 AD2d 891, 602 NYS2d 291, lv denied 82 NY2d 854, 606 NYS2d 606). However, what happens when the attorney who waives speedy trial is not the attorney who represents the defendant?

The court rejects the People's arguments that this scenario was somehow gross negligence or misfeasance on the Public Defender's part or that the lack of harm is a factor on a 30.30 motion. CPL § 30.30 is a statutory creation and harm to a defendant does not need to be shown in order for a defendant to prevail on a 30.30 motion (People v. Hamilton, 46 NY2d 932, 415 NYS2d 208).

If there is fault here, it appears that it lays with Town Court rather than either of the parties. If, in fact, defendant told Town Court that he would be hiring an attorney, the court erred when it indicated on the divestiture form that defendant was represented by the Public Defender, although how the case was sent to County Court without either a preliminary hearing or a waiver of the hearing is a question that is unclear. Had Town Court simply adjourned the case for an appearance with counsel, much of this confusion could have been avoided.

The People, relying on the divestiture form, made a plea offer to the attorney they [*3]believed represented defendant. The Public Defender, who was not present when defendant was arraigned in the middle of the night, and who may or may not have been informed by Town

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Court of the assignment, received a plea offer for a "client" he may not have known he represented. Undoubtedly, he then sent a routine letter to the District Attorney waiving 30.30 time so he could contact the defendant and relay the plea offer. Whether the Public Defender actually contacted the defendant is unclear but there was no reason for the District Attorney to question the 30.30 waiver.

While this court has found no cases precisely on point, the court is certainly influenced by People v. Smietana (98 NY2d 336, 746 NYS2d 678). There, construing CPL § 110.20, the Court of Appeals found that because the People were unaware of the charges prior to the defendant's arraignment, the period of time before arraignment was excludable for 30.30 purposes under the exceptional circumstances provision, despite the fact that CPL § 110.20 requires the arresting officer to notify the District Attorney of the arrest. Here, the District Attorney cannot be faulted for relying on Town Court's notice that the Public Defender represented the defendant. This is especially so since the Public Defender responded as

if he did in fact represent defendant.

This court believes that this rather bizarre set of facts constitutes exceptional circumstances under the statute and accordingly, at least the period of time between the Public Defender's waiver of 30.30 time and the subsequent notice to the People that defendant was represented by Mr. Swenson is excludable. This brings the chargeable period well within the applicable time limits and the motion to dismiss on 30.30 grounds is denied.

Defendant's motion based on the constitutional right to a speedy trial is completely devoid of any facts that would permit the motion to be granted and is accordingly denied (see People v. Taranovich, 37 NY2d 442, 373 NYS2d 79). The court further believes that the affidavit of defendant is sufficient to require a probable cause hearing and the court clerk is

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accordingly directed to schedule one.

This decision shall constitute the order of the court.

Dated: Little Valley, New York

July 27, 2004

_________________________

HON. LARRY M. HIMELEIN