Defendants Thomas Cabot and Lamont Reddish having each moved before this Court, pursuant to Criminal Procedure Law Section 210.20(1)(g), for dismissal of the indictment on the ground that they have been denied the right to a speedy trial in violation of Criminal Procedure Law Section 30.30 and the United States Constitution, and this Court having reviewed the papers and exhibits submitted therewith and the respective arguments of counsel, this Court determines the respective motions as follows:

Adjournment History

I. Cabot

8/31/06 Thomas Cabot was arrested in the Town of Clarkstown and charged with, inter alia, several felony offenses. He was arraigned before the Town of Clarkstown JusticeCourt on 9/1/06 and remanded to the Rockland County Jail until 9/6/06 for an appearance with counsel.

9/6/06 Defendant appeared with counsel in Justice Court and was released on his own recognizance pursuant to CPL 180.80as the People did not provide a preliminary hearing,and, by request of the People, the case adjourned to10/4/06 for felony investigation. (6 Days)

10/4/06 Defendant appeared with counsel in Justice Court and the case was adjourned by request of the People to 11/9/06. (34 Days) [*2]

11/9/06 Defendant appeared with counsel in Justice Court and the case was adjourned by request of the People to 11/20/06.

(70 Days)

11/20/06 Defendant appeared with counsel in Justice Court and the

case was adjourned by request of the People to 1/17/07.

(81 Days)

1/17/07 Defendant appeared with counsel in Justice Court and the case was adjourned by request of the People to 2/14/07.

(139 Days)

2/14/07 Defendant appeared with counsel in Justice Court and the case was adjourned by request of the People for GrandJury presentation.

(167 Days)

2/28/07 Defendant appeared with counsel in Rockland County Court for arraignment on Indictment No. 2007-52. The People

announced readiness for trial and the case was adjourned for a plea conference to 3/5/07, on consent.

(181 Days)

3/5/07 Counsel for defendant appeared in County Court and a plea conference was held. Defendant's appearance hadbeen waived. People reiterated readiness. The case wasscheduled for defendant's appearance on 3/19/07.

(181 Days)

3/19/07 Defendant appeared with counsel in County Court and a plea offer was rejected. The case was adjourned to

4/2/07 by request of defendant. People reiteratedreadiness.

(181 Days)

4/2/07 Defendant appeared with counsel in County Court and the case was adjourned for motions to 5/7/07. Peoplereiterated readiness.

(181 Days)

5/7/07 Defendant appeared in County Court with counsel. Courthanded down Decision and Order denying defendant's motion for dismissal on CPL 30.30 grounds and dismissingCounts I and II of the Indictment for legally insufficient evidence before the Grand Jury. The Peopleannounced readiness on the [*3]remaining charges andrequested a two week adjournment to determine whether tore-present to the Grand Jury the two dismissed counts ofthe Indictment.

(181 Days)

5/21/07 Defendant appeared with counsel in County Court. ThePeople announced they do not intend to re-present the dismissed counts of the Indictment and are ready toproceed. Counsel for defendant made an oral applicationfor dismissal of the Indictment on speedy trial grounds.

The Court requested said application be made in writing.(195 Days)

6/5/07 Defendant filed a motion to dismiss the Indictment onCPL 30.30 grounds. On June 11, 2007, the Peoplesubmitted an Affirmation in Response thereto, and onJune 11, 2007 this Court granted a hearing for the Court to determine the CPL 30.30 issue.

(195 Days)

6/25/07 A hearing was held in County Court on the issue ofCPL §30.30 and the case was thereafter adjourned for counsel to obtain the pre-indictment records from theTown of Clarkstown Justice Court.

(195 Days)

8/10/07 Defendant filed a supplemental motion rearguing the CPL30.30 issue. On August 27, 2007, the People submitted an Affirmation in Response thereto.

(195 Days)



II. Reddish

8/31/06 Lamont Reddish was arrested in the Town of Clarkstownand charged with, inter alia, several felony offenses.He was arraigned before the Town of Clarkstown JusticeCourt on 9/1/06 and remanded to the Rockland CountyJail until 9/6/06 for an appearance with counsel.

9/6/06 Defendant appeared with counsel in Justice Court and was released on his own recognizance pursuant to CPL 180.80as the People did not provide a preliminary hearing, and, by request of the People, the case adjourned to10/4/06 for felony investigation.

(6 Days) [*4]

10/4/06 Defendant appeared with counsel in Justice Court and the case was adjourned by request of the People to 11/1/06.

(34 Days)

11/1/06 Defendant appeared with counsel in Justice Court and the case was adjourned by request of the People to 11/29/06.

(62 Days)

11/29/06 Defendant contacted the Court and requested anadjournment due to illness. The case was adjourned bythe Court to 12/18/06.

(90 Days)

12/18/06 Defendant appeared with counsel in Justice Court and the case was adjourned by request of the People to 1/24/07.

(109 Days)

1/24/07 Defendant failed to appear and a letter was sent toDefendant to appear on 2/12/07. No bench warrant wasrequested by the People.

(146 Days)

2/12/07 Defendant appeared with counsel in Justice Court and thecase was adjourned by request of the People for GrandJury presentation.

(165 Days)

2/28/07 Defendant appeared with counsel in Rockland County Court for arraignment on Indictment No. 2007-52. The People announced readiness for trial and the case was adjourned for a plea conference to 3/5/07.

(181 Days)

3/5/07 Counsel for defendant appeared in County Court and a plea conference was held. Defendant's appearance hadbeen waived. People reiterated readiness. The case was scheduled for defendant's appearance on 3/19/07.

(181 Days)

3/19/07 Defendant appeared with counsel in County Court and a plea offer was rejected. The case was adjourned to

4/2/07 by request of defendant. People reiteratedreadiness. [*5]

(181 Days)

4/2/07 Defendant appeared with counsel in County Court and the case was adjourned for motions to 5/7/07. Peoplereiterated readiness.

(181 Days)

5/7/07 Defendant appeared with counsel in County Court. Courthanded down Decision and Order denying co-defendantCabot's motion for dismissal on CPL 30.30 grounds anddismissing Counts I and II of the indictment for legallyinsufficient evidence before the grand jury. The People announced readiness on the remaining charges and requested a two week adjournment to determine whether tore-present to the Grand Jury the two dismissed counts ofthe Indictment.

(181 Days)

5/21/07 Defendant appeared with counsel in County Court. ThePeople announced they do not intend to re-present the dismissed counts of the Indictment and are ready to proceed. Counsel for defendant made an oral applicationfor dismissal of the Indictment on speedy trial grounds.

The Court requested said application be made in writing.(195 Days)

5/25/07 Defendant filed a motion to dismiss the Indictment onCPL 30.30 grounds. On June 4, 2007, the Peoplesubmitted an Affirmation in Response thereto, and onJune 11, 2007 this Court granted a hearing for the Courtto determine the CPL 30.30 issue.

(195 Days)

6/25/07 A hearing was held in County Court on the issue ofCPL §30.30 and the case was thereafter adjourned for counsel to obtain the pre-indictment records from theTown of Clarkstown Justice Court.

(195 Days)

8/10/07 Co-defendant Cabot filed a supplemental motion inregard to the CPL 30.30 issue. On August 27, 2007, thePeople submitted an Affirmation in Response thereto.

(195 Days)

The Applicable Law

CPL § 30.30(1)(a) mandates that the People be ready for [*6]trial on a felony within six months from the commencement of the criminal action. People v. Chavis, 91 NY2d 500, 504 (1998). The statutory speedy trial time period for felony charges is computed in terms of calendar months and is thus not 180 days.

People v. Varuzzi, 179 Misc 2d 716 (Supreme Ct., Queens Co.

Criminal Procedure Law §210.10(1), provides, "[a]fter arraignment upon an indictment, the superior court may, upon motion of the defendant dismiss such indictment or any count thereof upon the ground that: (g) The defendant has been denied the right to a speedy trial."

It is well established that "[w]here a defendant moves to dismiss an indictment on grounds specified in CPL 30.30 and includes in the moving papers sworn allegations that there has been unexcused delay in excess of the statutory maximum, the motion must be granted summarily unless the People controvert the factual basis for the motion." People v. Santos, 68 NY2d 859,

861 (1986).

Once the defendant has made sworn allegations of an unexcused delay greater than six months, "[t]he burden then shifts to the People" to prove that any periods of that time should be excluded. People v. Santos, supra, at 861. However, the defendant has the burden of showing that any post-readiness [*7]

adjournments should be charged to the People. People v. Cortes, 80 NY2d 201, 215 (1992). "Where the papers submitted by the prosecutor show that there is a factual dispute, there must be a hearing." People v. Santos, supra, at 861 (citation omitted).

In cases wherein there is a dismissal of an indictment, the courts have consistently held that "an indictment which replaces an earlier one in the same criminal action should be related back to the original accusatory instrument for the purpose of determining the commencement of the six-month readiness period." People v. Sinistaj, 67 NY2d 236, 237 (1986), citing, People v. Lomax, 50 NY2d 351 (1980), and People v. Osgood , 52 NY2d 37 (1980). The reasoning is clear. There can be only one date that marks the commencement of a criminal action for CPL § 30.30 purposes, which is the date the first accusatory instrument is filed. See, People v. Sinistaj, supra, at 239.

"That initial answer of readiness does not, however, abrogate defendant's CPL 30.30 rights with respect to post- readiness delay properly chargeable to the People; it merely preserves the unexpired portion of the readiness period that existed when the People originally declared their readiness." People v. Marsh, 127 AD2d 945, 947 (3d Dept. 1987).

Page 8



Discussion - Pre-Readiness Delay

Defendants move to dismiss the indictment pursuant to CPL § 30.30 (1)(a) on the ground the People were not ready for trial within the applicable six month period.

"Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for exclusion." People v. Cortes, supra, at 208.

The instant case commenced with the filing of a felony complaint against defendants Cabot and Reddish in the Town of Clarkstown Justice Court on August 31, 2006. The People had six months from this date or 181 days, minus any excludable time, to [*8]

be ready for trial.^[FN1]

There were numerous court appearances by defendants in the Town Justice Court before they were arraigned by this Court on February 28, 2007. The People announced readiness on that date, 181 days from the date of commencement of the action. Albeit the

Page 9

last day of the People's 181 day window, their announcement of readiness for trial was within the six month statutory time

I. Cabot

From the date of commencement on August 31, 2006 to the date of the People's announcement of readiness in County Court on February 28, 2007, both the People and defendant agree that all time was chargeable to the People as the prosecutor requested the adjournments for felony investigation purposes, with the exception of two adjournments. The first was for 11 days from November 9, 2006 to November 20, 2006, the second was for 58 days from November 20, 2006 through January 17, 2007. Defendant maintains that there were no adjournments made on his consent, and no time that can be deemed excludable in calculating the [*9]

People's pre-readiness 30.30 time.

The People state that on November 9, 2006, defendant failed to appear and a letter was sent advising him to be in Court on November 20, 2006. ^[FN2] The People argue that this period should be excludable in calculating their CPL 30.30 time. The People further claim that the adjournment from November 20, 2006 to January 17, 2007, was done with defendant's consent and should,

Page 10

therefore, also be excluded.

In determining whether these adjournments are, in fact, excludable, this Court reviewed the sworn statement of the Town Justice Court Clerk regarding the case adjournment history, the Town Justice Court docket sheet, the available transcripts of court proceedings - September 6, 2006, October 4, 2006, January 17, 2007, and February 14, 2007, and the respective arguments of counsel. This Court concludes that the two adjournments, which constitute pre-trial delay, are not excludable in calculating the People's 30.30 time.

With respect to the first adjournment from November 9, 2006 [*10]

through November 20, 2006, the records provided to the Court are not clear as to whether defendant appeared, and if he did not, whether the failure to appear was the fault of the defendant or the Court. Regardless, the absence of defendant from Court has consistently been held not excludable to the People when calculating speedy trial time. People v. Bolden, 81 NY2d 146 (1993). Although "defendants who voluntarily evade the court process should not reap any rewards from their absence", People v. Rodriguez, 132 Misc 2d 1044, 1045, (1986), it is well-settled that periods of delay resulting from the mere absence or unavailability of defendant are not excludable. People v. Bolden, supra.

C.P.L. § 30.30(4) sets forth the periods that must be

Page 11

excluded in computing the time within which the People must be ready for trial, which includes the period of delay resulting from the absence or unavailability of the defendant, defined as follows:

(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 [*11]

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.

Criminal Procedure Law § 30.30 (4)(c)

In People v. Bolden, supra, the Court of Appeals overruled a decision by the Appellate Division, which had affirmed the decision of the trial court, and in so ruling, set forth a definitive analysis of excludable time with respect to the absent or unavailable defendant pursuant to CPL § 30.30 (4)(c).

In Bolden, id., the ultimate question before the Court was whether the final clause of the statute, as amended in 1984, requires "that the People exercise due diligence' in attempting to locate an absent' defendant or secure the presence of an unavailable' one... where a bench warrant has been issued and remains outstanding." Id., at 147. The Court found that "the

Page 12

legislative design is clear. In adopting the 1984 amendment to CPL 30.30(4)(c), the Legislature relieved the People of their burden of showing a causative relationship between defendant's absence and their delay, but the quid pro quo was that the People had to obtain a bench warrant as a precondition for availing [*12]themselves of the relaxed burden of proof." Id., at 149. The Court reasoned that the Legislature, "having taken the trouble to inject the new requirement of a bench warrant into the equation ... intended that the People would exercise due diligence' in the enforcement of the bench warrants that the new statute required." Id.

In providing a definitive interpretation of the statute, the Court of Appeals in Bolden held, "[i]n sum, both the legislative history and the unambiguous language of CPL 30.30(4)(c) point inexorably to the conclusion that prosecutorial diligence in locating the defendant and/or securing his presence must be shown in order to invoke the exclusion for periods that the defendant was absent' or unavailable' and a bench warrant for his apprehension was outstanding." Id., at 150. In the instant case the People allege that defendant failed to appear on one court date, was sent a letter from the Court requiring his appearance on another date, and defendant appeared as directed. At no time was a bench warrant issued to secure defendant's attendance. Nor did the defendant's failure to

Page 13
appear impede the People from continuing the on-going felony investigation or becoming ready for trial. The People contend [*13]

that a defendant's failure to appear on a Town Justice Court date can "be deemed excludable as a period of delay resulting from the absence or unavailability of defendant pursuant to CPL § 30.30(4)(c)(i)" on the basis that "defendant not being present in court, prevented the People and the Defense from being able to conference the case toward possibly reaching a disposition." See, People's combined Affirmation in Opposition to 30.30 motions by defendants Cabot and Reddish, dated August 27, 2007, pp.9-10. This argument is wholly without merit. There is no provision in the statute for this Court to allow an excludable period for a missed court date by a defendant on the ground it prevented a plea negotiation conference between counsel.

Moreover, on the next court date, defendant appeared as directed and the case was once again adjourned by the People for felony investigation. Thus, it is clear, that the People were not ready to proceed to trial on the date when defendant failed to appear in the Town Justice Court, nor were the People ready on the next court date when defendant did appear. In fact, it was in excess of three months from November 9, 2006, the date defendant failed to appear, to February 28, 2007, before the People announced readiness for trial. Accordingly, this Court finds the 11 day adjournment from November 9, 2006 to November

Page 14
20, 2007 to be chargeable to the People.

The second period the People argue is excludable when calculating the 30.30 time in this case is the 58 day period from November 20, 2006 to January 17, 2007. The People argue this adjournment was made with defendant's consent and argue that defense counsel is inaccurate with respect to the November 20, 2006 court date, which was not November 20 but November 17, 2006, as set forth in the Town Justice Court Clerk's sworn statement. Defendant maintains that he was in the Town Justice Court on November 20, 2006, and the case adjourned to January 17, 2007, without his consent.

Upon review of the records provided, this Court finds the 58 day adjournment from November 20, 2006 to January 17, 2007 to be chargeable to the People as there is insufficient evidence to prove that defendant consented to the adjournment. It should be noted that in reviewing the records from the Town Justice Court, this Court found that defendant was accurate in stating the Justice Court date was November 20, 2006. The records show that November 20, 2006 was a Monday, which was a regular Clarkstown Justice Court date. November 17, 2006 was a Friday and not a calendar date for the Court. The November 17, 2006 [*14]date appears to have been written by the Town Court Clerk in error.

In determining whether the adjournment in question was

Page 15
excludable or chargeable to the People, this Court conducted an extensive review of the records provided and found the records from the Town Justice Court in this case to be wholly inconsistent. The sworn statement submitted by the Town Justice Court Clerk contains errors in the dates, some of which are clearly typographical and some simply do not match up to the Court's docket sheet. Further, the Court's docket sheet is incomplete at best, and also inconsistent with the dates provided by counsel in their respective arguments. The records that this Court did find reliable were the transcripts from the four court dates that were provided.

Thus, to determine whether the People's claim that the 58 days was a consent adjournment, this Court reviewed the transcript of January 17, 2007, the date the parties returned to Justice Court, as there was no transcript created on the date the adjournment was made. After a 58 day adjournment, the Prosecutor requested another adjournment for felony investigation purposes. The Judge questioned whether the People were "within their time". [*15]Defense counsel and the People commented with respect to the time >element of the case. Specifically, defense counsel stated "this has been on for felony investigation. I've been here six times on a relatively simple case. I don't see why they can't make a decision in that period of time." The comments by all parties are not consistent with just having returned from a 58 day

Page 16
consent adjournment.

Given the inconsistencies in the Justice Court Clerk's sworn statement, the incomplete docket sheet, and the absence of a Justice Court transcript for the date wherein the case was adjourned for the 58 days, this Court determined that there is insufficient evidence to find that the November 20, 2007 adjournment was made with defendant's consent. The 58 days are thus not excludable and must be charged to the People.

In People v. Cortes, supra, the Court of Appeals stated, in determining a dispute as to excludable time in a speedy trial claim, "it is the People's burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged." [*16]Id., at 215. In Cortes, the Court went on to state that "[s]ince the People failed to satisfy this primary obligation, they must assume responsibility for the [44-day] delay that followed." Id.

In the instant case, there were three written motions for dismissal of the indictment on 30.30 grounds, and three Affirmations in response and opposition thereto by the People. There was also an evidentiary hearing conducted by the Court wherein the People could have brought in the Court Clerk or other

Page 17
witnesses to clarify the record. The various Justice Court records provided to this Court were inconsistent. Consequently, this Court used the actual transcripts provided, in making the final determination that there were no consent adjournments by defendant Cabot prior to the announcement of readiness by the People in County Court and thus, no excludable time. I. Reddish

From the date of commencement on August 31, 2006 to the date of the People's announcement of readiness in County Court on February 28, 2007, defendant maintains that all time was chargeable to the People, who had adjourned the case from time to [*17]time for the purposes of felony investigation. The People claim that there are two pre-readiness adjournments that are excludable in calculating their 30.30 time for this defendant.

The first time period that the People allege should be excludable was 19 days, from November 29, 2006, through December 18, 2006. The People maintain that defendant called the Court stating that he was sick and the case was then adjourned by the Court to November 29, 2006. The only records provided to this Court to support this contention is the Court's Docket sheet, which shows the court date and the notations, "1:30 P.M. def. called - sick" and the Town Justice Court Clerk's sworn statement ¶ 8, which states, "That on November 29, 2006, the defendant contacted the Court and advised that he was sick. The
Page 18
defendant did not appear and the matter was adjourned to December 18, 2006." The next notation by the Clerk, at ¶ 9, states, "That on December 18, 2006 the defendant appeared with his attorney and the matter was adjourned at the request of the Assistant District Attorney to January 24, 2007."

Although the sworn statement of the Town Court Clerk for defendant Reddish is, unlike the sworn statement in the Cabot case, consistent with the docket sheet, and consistent with the [*18]dates set forth by the prosecutor, the docket sheet is not complete. Upon review, there is no record of whether defendant actually requested an adjournment. Rather, it states that defendant did not appear. Nor do the docket or the Clerk's statement state who set the next Court date, whether defense counsel was present or contacted, or whether the People were present or contacted. There is no mention of a specific request to adjourn by defense counsel or whether he had any input with respect to the adjourn date set. What is clear is that on the next court date, 19 days later, all parties were in Court and the People requested another adjournment to January 24, 2007.

The question before this Court then, is whether this adjournment is chargeable to the People or excludable, in calculating 30.30 time.

"Where adjournments are allowed at defendant's request, those periods of delay are expressly waived in calculating the

Page 19
People's trial readiness." People v. Kopciowski, 68 NY2d 615, 617 (1986), citing, People v. Worley, 66 NY2d 523 (1985). However, in the instant case, there is no evidence that defendant made a request for an adjournment. Assuming arguendo, defendant's call to the Court to state that he was sick is deemed [*19]a request to adjourn, rather than a notice that he was unavailable, there is no proof of request for, or consent to a 19 day adjournment.

"Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility of the delay. Defense counsel's failure to object to the adjournment or failure to appear does not constitute consent." People v. Smith, 82 NY2d 676, 677 (1993).

Upon review of the records of the Town Justice Court, it is clear that the court regularly conducted calendar at the minimum of once per week. Pursuant to the proof provided, it appears the adjourn date was set unilaterally and arbitrarily by the Town Justice Court Clerk without the consent of the defendant for the protracted adjournment of 19 days. This Court finds no proof as to why the matter was not adjourned to the following week, or for any regular Town Justice Court date that would have adjourned the matter for a period less than 19 days. There is no proof, nor argument by the People that the adjourn date was set by the People, with consent of defense counsel, due to the illness of

Page 20
defendant.

The proof before this Court is devoid of any facts other [*20]than that defendant called the court to advise that he was sick. There was no proof submitted at the evidentiary hearing as to the facts regarding this adjournment to support the People's contention that this was, in fact, an adjournment made by request of the defendant due to illness, that there was consent for a 19 day adjournment, or, more importantly, that this adjournment in any way impeded the People's ability to proceed with readying the case for trial. To the contrary, the evidence before this Court is that on December 18, 2006, when all parties appeared in Court as directed, the People once again requested an adjournment for felony investigation purposes, and were not ready for trial and remained unready for trial until February 28, 2007, in excess of two months later.

This Court further notes that at no time did the prosecutor seek to have the case scheduled prior to the date given to defendant by the Court. The People had adjourned on each Justice Court date previously for felony investigation, and continued to do so until February 12, 2007, when the People advised defendant and the Town Justice Court that the case was scheduled for Grand Jury presentation.

In People v. Smith, 82 NY2d 676, 678 (1993), the Court of Appeals stated, "adjournments consented to by defense must be

Page 21
clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel's failure to object to the adjournment or failure to appear does not constitute consent... The People can avoid being charged with prereadiness delay occasioned by court scheduling by filing a certificate of readiness."

Periods of delay for adjournments are not chargeable to the People where defense counsel consents to the adjournments and actively participates in setting the adjourned dates. People v. Goodwin, 209 AD2d 228 (1st Dept. 1994).

The controlling factor in this Court's determination of whether this adjournment is excludable, are the well- established rules that the burden is on the People to establish that the record of the proceedings at which a continuance is granted is sufficiently clear to enable a court determining a subsequent motion to dismiss on speedy trial grounds, who should be charged for the adjournment, People v. Cortes, supra, and where the record is not sufficient to enable the court to determine who should be charged, the delay is not excludable and must be charged to the People. Id.; see also, People v. Liotta, 79 NY2d 841(1992).

Accordingly, this Court finds the call to the Town Justice [*21]Court to advise that he was sick, with no other evidence presented by the People, insufficient to allow the People a 19

Page 22
day excludable time period on the basis that defendant requested the adjournment, where defendant maintains no request for adjournment was made.

The second period of pre-readiness time which the People allege should be deemed excludable for this defendant is 19 days from January 24, 2007, to February 12, 2007. On January 24, 2007, defendant failed to appear in Justice Court and a letter was sent for him to appear on February 12, 2007. These facts are proven by the records submitted to the Court in this matter. However, this delay wherein defendant was absent from court, sent a letter to appear and did so on the date provided, is like that in Cabot. On the same basis, pursuant to CPL § 30.30 (4)(c), this delay is not excludable in calculating the People's speedy trial time. See, Discussion - Pre-readiness Delay, I. Cabot, set forth herein; see also, People v. Bolden, supra. Discussion - Post-Readiness Delay

In determining whether there was any post-readiness delay [*22]that was excludable for 30.30 purposes, this Court then reviewed the record in County Court.

Defendants Cabot and Reddish were arraigned in County Court on February 28, 2007, and readiness announced. The case was then adjourned for plea conference purposes by the Court to March 5,

Page 23
2007. On that date a conference was held, and defendants' appearances waived. The case was then scheduled for March 19, 2007, at which time defendants appeared, rejected the plea offers, and the case was adjourned for the filing of pre-trial motions. On each occasion that defendants appeared in County Court they claimed that the case should be dismissed on the basis the six month speedy trial time had already passed. On each occasion the People reiterated readiness for trial.

On May 7, 2007, the parties were in Court and the Court's Decision and Order on defendant's omnibus motion was handed down. The Court denied defendant's speedy trial motion but dismissed Counts I and II of the Indictment for insufficient evidence before the Grand Jury. The People stated they were ready on the remaining counts of the Indictment but requested a two week adjournment to determine if the two dismissed counts should be re-presented to the Grand Jury. On May 21, 2007, all parties [*23]were in Court and the People stated that they did not intend to re-present the two dismissed counts. The case then proceeded for further motions and hearing on defendants' claims of speedy trial violation.

This Court now must determine whether there exists any post- readiness delay that is not excludable. The period of adjournments from February 28, 2007, the date of arraignemnt on the indictment and notice of readiness, to May 7, 2007, is

Page 24
excludable due to court scheduling and pre-trial motions. People v. Durette, 222 AD2d 692 (2nd Dept. 1995).

With respect to the adjournment from May 7, 2007, to May 21, 2007, this Court finds the adjournment is not excludable. Upon receiving the Court's decision dismissing the two counts of the Indictment, the People reiterated readiness on the remaining counts and requested two weeks to determine whether to re- present the dismissed counts. This time is chargeable to the People.

In People v. Samuel, 9 Misc 3d 1122A (Kings Co. 2005), the Court found that an adjournment by the People to consider re- presenting dismissed counts of an indictment or to reargue the dismissal of those counts, to be chargeable to the People. The [*24]Court reasoned that had the People agreed on that date to proceed on the lesser charges, the adjournment requested by defendant due to counsel's unavailability, would have made the time excludable.

In the instant case, the People argue, in their Affirmation in Opposition, that Samuel, id., is not controlling, on the basis the People did not seek the two week adjournment to consider re-presenting the two dismissed counts of the indictment. This is inaccurate. On May 7, 2007, in open Court, upon receiving the Court's Decision and Order on defendants' omnibus motion, the People reiterated their readiness on the remaining charges and requested an adjournment to determine

Page 25
whether to re-present the dismissed counts of the Indictment.

The People further distinguish Samuel, id., by the fact that in the instant case the Court granted leave to re-present in the Decision and Order dismissing the two counts of the Indictment, where in Samuel, id., the People had to apply to the Court for leave to submit. Thus, the People argue the two week adjournment granted by the Court for the People to determine whether to re-submit the charges, is not excludable. This argument is without merit.

Criminal Procedure Law § 210.20(4) requires that the Court [*25]grant authorization to the People to resubmit dismissed charges of an Indictment to the same or another Grand Jury. This Court granted that authorization upon dismissal of the two counts of the Indictment, for judicial economy and to expedite the proceedings. In this way the People did not require a motion requesting authorization to resubmit the charges to a Grand Jury. Upon receipt of the Court's Decision and Order on May 7, 2007, the People did not advise the Court that they were not seeking authorization to resubmit. Nor did the People request that the remaining charges be scheduled for trial. Rather, the People stated readiness on the remaining charges but, at the same time, requested a two week adjournment to determine whether to re-present the two dismissed charges.

Had the People stated on May 7, 2007, that they wished to

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proceed on the remaining counts, the case would have been adjourned for further motions or trial, and the adjournment not been deemed chargeable to the People. That did not occur. The Prosecutor's request for 14 days time to determine whether to re-present the dismissed charges to the Grand Jury is chargeable to the People.

As such, with respect to defendant Cabot, the aggregate [*26]number of days of non-excludable time chargeable to the People is 195 days, and exceeds the six month statutory speedy trial time limitation. With respect to defendant Reddish, the aggregate number of days of non-excludable time chargeable to the People is 195 days, also exceeding the six month statutory speedy trial time limitation. Accordingly, the indictment, as it relates to each of the two defendants, must be dismissed.

This Court's determination in the instant matter appears to be, in part, one of first impression, as there was a partial dismissal of an indictment which did not result in a superceding indictment or supplemental indictment. This Court finds the rationale utilized by the courts in those cases which did result in additional Grand Jury action, to be the same.

There can be only one date which marks the commencement of a criminal action for CPL § 30.30 purposes. The statute provides for readiness in a criminal action regardless of the number of accusatory instruments. A subsequent or successive indictment

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relates back to the commencement of the proceedings for purposes of applying the six month statutory limitation set forth in CPL § 30.30 (1)(a). In the instant case, where there was a partial dismissal of the indictment which did not result in a superceding [*27]or successive indictment, it only stands to reason that the same rules apply.

Conclusion
Based on the foregoing, it is hereby,

ORDERED, that defendant Thomas Cabot's Motion to Dismiss Indictment 2007-52, is granted; and it is, hereby, further

ORDERED, that defendant Lamont Reddish's Motion to Dismiss Indictment 2007-52, is granted.

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[*28]

This Decision shall constitute the Order of this Court.

E N T E R

Dated: New City, New York

September 5, 2007

________________________________

Honorable Victor J. Alfieri, Jr.

J.C.C.

To:

Keith Braunfotel, Esq.

Attorney for Defendant Cabot

James D. Licata, Esq.

Public Defender, Rockland County

Attn: Ronnie Gonzalez, Esq.

Attorney for Defendant Reddish

Michael E. Bongiorno, Esq.

District Attorney, Rockland County

Attn: Steven E. Goldberg, Senior ADA