Defendant, charged with eight counts of Aggravated Harassment in the Second Degree pursuant to P.L. ' 240.30(1)(a), moves for an order dismissing the information pursuant to CPL ' 30.30.

The Court has reviewed the Defendant=s motion papers, the People=s response and all relevant statutes and case law and, for the reasons discussed hereafter, denies the Defendant=s motion for dismissal based on the grounds of speedy trial.

Pursuant to Criminal Procedure Law '30.30(1)(b), a motion to

dismiss must be granted where the people are not ready for trial within ninety (90) days of the commencement of a criminal action when the accusatory instrument charges the Defendant with violating a class A Misdemeanor as it does in the case at bar.Defendant argues that more than 90 days are chargeable to the People.

The Court finds that fifty seven (57) days are chargeable to the People as set forth below:

DatesNumber of Days Charged

February 20, 2007 to April 18, 200757

April 18, 2007 to June 6, 20070

June 6, 2007 to August 22, 20070

August 22, 2007 to November 7, 20070

February 20, 2007 to April 18, 2007

When a defendant is served with an appearance ticket, defendant=s statutory right to a speedy trial does not attach until the first time defendant appears in court in response to the appearance ticket. See, CPL '30.30(5)(b); see, also People v. Paige, 475 NYS2d 762 {124 Misc 2d 118} (1984). In the present case, Defendant first appeared in court on February 20, 2007 to respond to the appearance ticket. At the People=s request and for further investigation, the case was adjourned to April 18, 2007. This period is chargeable to the people.

(57 days charged to the People)

April 18, 2007 to June 6, 2007

On April 18, 2007 the Defendant failed to appear, and a bench warrant was ordered and stayed to June 6, 2007. The case was adjourned to June 6, 2007 when Defendant subsequently appeared in court.

Criminal Procedure Law '30.30(4)(c)provides in substance that:

AIn computing the time within which the people must be ready for trial pursuant to subdivisions one and two, the following periods must be excluded:(c)(i) the period of delay resulting from the absence or unavailability of the defendant. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence; or (ii) where the defendant has either escaped from custody or has failed to appear when required after having previously been released on bail or on his own recognizance, and provided the defendant is not in custody on another matter, the period extending from the day the court issues a bench warrant pursuant to section 530.70 because of the defendant's failure to appear in court when required, to the day the defendant subsequently appears in the court pursuant to a bench warrant or voluntarily or otherwise; @

Defendant, in the instant case, contends, in substance, that Aa careful reading of Section 30.30(4)(c) shows that Defendant was not absent because the People knew about Defendant=s whereabouts and Defendant was not attempting to avoid prosecution.@ The Court agrees with the Defendant, that he was not Aabsent@ on April 18, 2007, as defined by the relevant statute. The Defendant was however Aunavailable@. The full text of Section 30.30(4)(c) states that AA defendant must be considered unavailable whenever his location is [*2]known but his presence for trial cannot be obtained by due diligence.@

Here, on April 18, 2007, the Defendant, based upon the representation of his counsel, could not be present in court because he was not only ill with pneumonia, but also in a cast. Even though the Defendant=s whereabouts were known to the Court, his appearance could not be obtained by due diligence as Defendant=s alleged medical condition precluded his appearance. The Court finds that the Defendant in the instant case was unavailable on April 18, 2007 causing the matter to be adjourned to June 6, 2007. That period of delay is excludable. See, CPL '30.30(4)(c)(i).

(0 day charged to the people)

New York, NYMARC J. WHITEN, JCC

[*3]