People v Rodriguez (2006 NY Slip Op 51128(U))

People v Rodriguez (Luis)

2006 NY Slip Op 51128(U) [12 Misc 3d 132(A)]

Decided on June 15, 2006

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

People of the State of New York, Appellant,

against

Luis Rodriguez, Defendant-Respondent.

The People appeal from an order of the Criminal Court, New York County (Gerald Harris, J.), entered October 23, 2003, which granted defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30, and from an order (same court and Judge), entered January 9, 2004, which upon reargument, adhered to the prior decision.

Order (Gerald Harris, J.), entered January 9, 2004, reversed, on the law and facts, motion denied, accusatory instrument reinstated, and matter remanded to Criminal Court for further proceedings. Appeal from order (same Judge), entered October 23, 2003, dismissed, as superceded by the appeal of the subsequent order.

While the court properly determined that the 11-day adjournment from June 9, 2003 to June 20, 2003, requested by the People, was chargeable to them (see People v Anderson, 252 AD2d 399, 401 [1998], lv denied 92 NY2d 1027 [1998]), a review of the entire time between the filing of the accusatory instrument and defendant's motion (see People v Salgado, 27 AD3d 71 [2006], lv denied 6 NY3d 838 [2006]) reveals that two time periods totaling 28 days should not have been charged to the People. On July 16, 2002, the People answered not ready and asked for a one week adjournment. The defense, however, requested that the matter be adjourned until after August 12, 2002, to accommodate defense counsel's vacation schedule. The court adjourned the case to August 19, 2002. In this post-readiness context, the People were chargeable with only the seven days requested by them (see People v Stirrup, 91 NY2d 434 [1998]); People v Colon, 272 AD2d 125 [2000], lv denied 95 NY2d 904 [2000]). The 22-day adjournment period from November 12, 2002 to December 4, 2002, following defendant's return on a bench warrant, was not chargeable to the People (see People v Muhanimac, 181 AD2d 464 [1992], lv denied 79 NY2d 1052 [1992]). In light of our holding that the People should not have been charged with the aggregate 28-day period, thus bringing the time chargeable to the prosecution to 64 days, we need not reach the issues concerning the remaining controverted 15-day time period.

This constitutes the decision and order of the court. [*2]
I concur I concur
Decision Date: June 15, 2006