Defendant moved to dismiss the indictment on CPL 30.30 grounds and the court directed

a hearing to resolve two factual issues: (1) exactly when the People's statement of readiness was filed, and (2) what occurred during the five day period after defendant was arraigned in Town Court. The hearing was held on October 9, 2007.

Defendant was arrested on October 27, 2006 and taken to New Albion Town Court for arraignment. Defendant requested counsel and the Town Judge appointed the Public Defender to represent defendant. The court set bail, adjourned the case to November 21 (the next night an assistant district attorney would be present), and faxed the order assigning counsel to the Public

Defender at 11:32 p.m. that night. The court also faxed the information to the Assistant District Attorney who prosecutes criminal cases in the Town of New Albion.

The Assistant District Attorney contacted Town Court to find out if defendant was incarcerated and, if so, to schedule a preliminary hearing, which was then set for November 2, 2006. On November 1, 2006, the preliminary hearing was waived and Town Court forwarded the paperwork to County Court. On or about November 21, 2006, Town Court reduced the bail. [*2]How Town Court had the jurisdiction to do that is unclear; under CPL 180.30 (1), after a preliminary hearing is waived, the action remains pending in the local criminal court only until the papers are received in the appropriate superior court.

CPL 40.30 (4) (f) provides that the time a defendant is "without counsel through no fault of the court" is not chargeable to the People for 30.30 calculations. The Public Defender argues that only one day is excludable because their office would have seen the fax assigning them the day after defendant was arraigned and thus the four days from October 28 to November 1 is not a period that defendant was without counsel.

The court disagrees. In People v. Brauen (169 Misc 2d 655, 647 NYS2d 689 [Co Ct, Cattaraugus County 1996]), this court held that an adjournment to a specific date for a defendant to obtain counsel results in the exclusion of the entire period. The fact that a defendant hires or is assigned an attorney before the return date does not render part of the adjournment non-excludable. Any other interpretation of CPL 30.30 (4) (f) would be unworkable (see People v. Woodward, 219 AD2d 837, 631 NYS2d 965 [4th Dept 1995] [adjournment to specific date for defendant to obtain counsel excludable]; see also People v. Stefano, 159 AD2d 1016, 552

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NYS2d 727 [4th Dept 1990]; People v. Drake, 205 AD2d 996, 613 NYS2d 961 [3d Dept 1994]; People v. Ellis, 123 Misc 2d 544, 474 NYS2d 188 [Sup Ct Kings County 1984]). Therefore, the period from October 27, 2006 to November 1, 2006, when the preliminary hearing was waived, is chargeable to the defense.

The second factual question is whether the People's statement of readiness was filed on April 26, 2007 or May 1, 2007. The indictment was date stamped April 26 but the statement of readiness, People's alibi demand, People's demand to produce and CPL 710.30 notice were all date stamped May 1. The cover letter with these documents was dated April 26 but the clerk's office does not date stamp correspondence, something which hopefully changes in the future.

None of the witnesses had a specific recollection of the date these pleadings were filed. However, the court has little difficulty concluding that the statement of readiness was filed on May 1, 2007. First, that is the date stamped on it. The court clerks' testimony was that several times a day, papers in the "in" box are taken down to the County Clerk's office to be stamped. The only time a paper might be placed in the in box and not date stamped the same day would be if it was brought in late one day and was stamped the following morning. It would be almost unthinkable that something would remain in the box for five days.

Second, the public defender's office received the statement of readiness on May 2, 2007 through the county inter-office mail, which generally takes one day. That timing is consistent with someone from the District Attorney's office bringing the original papers to the court clerk's office the same day copies were mailed to the Public Defender. Therefore, the court concludes that the statement of readiness was filed on May 1.

In this case, the People had 182 days to declare their readiness for trial (People v. Cortes,

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80 NY2d 201, n 3, 590 NYS2d 9 [1992]; People v. Militello, 199 AD2d 1053, 606 NYS2d 115 [4th Dept 1993]; People v. Respress, 195 AD2d 1053, 600 NYS2d 535 [4th Dept 1993]). [*3]Excluding the five days between October 27, 2006 and November 1, 2006, the People's statement of readiness was filed on the 182nd day. Defendant argues that under People v. England (84 NY2d 1, 613 NYS2d 854 [1994]), the statement of readiness is illusionary because defendant had not been arraigned.

In England, the indictment was returned exactly six months after the defendant was charged and the People filed their readiness statement at the same time. The defendant moved, pre-arraignment, for a 30.30 dismissal alleging that, by the time the arraignment date came, 196 days would have elapsed. Because defendant had not been arraigned, and because the "People claimed no exclusion for the period between indictment and arraignment" (see England, 84 NY2d at 3, 613 NYS2d at 856), defendant could not be arraigned before the speedy trial period expired, and therefore, the indictment had to be dismissed. The court also noted that CPL 210.20 (2) requires that an indicted defendant be given at least two days notice of the arraignment date.

However, England did not hold that the People cannot declare readiness before a defendant is arraigned. Thus, in People v. Goss (87 NY2d 792, 642 NYS2d 607 [1996]), the court held that where it is possible for a defendant to be arraigned within the six month readiness period, a pre-arraignment statement of readiness is valid. Further, because arraignment is a function of the court, any post-readiness delay in arraignment is not chargeable to the People.

Here, and this is the point defendant misses, the indictment was filed on April 26, 2007, five days before the readiness period expired. Therefore, it was possible to arraign defendant within the readiness period. Defendant's contention that he could not have been arraigned within

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the statutory period is incorrect. In People v. Clarke (233 AD2d 831, 649 NYS2d 558 [4th Dept 1996] app denied 89 NY2d 1010, 658 NYS2d 248 [1977]), the indictment was also filed five days before the readiness period expired and the Appellate Division found that the statement of readiness was valid.

England and Goss thus contemplate two different scenarios: (1) the England situation where the indictment and statement of readiness are filed on the last possible day, which will result in a dismissal; and (2) the Goss situation where the indictment and statement of readiness are filed at least two days before the 30.30 period expires, which results in a timely announcement of readiness. The instant situation differs in that the statement of readiness was not filed contemporaneously with the indictment; the indictment was filed five days before the speedy trial period expired, but the statement of readiness was not filed until the last possible day.

Because the indictment was filed on the 177th day (after subtracting the five day period the case was in the local court), under Goss, it was filed at a time when it would be possible to arraign and try defendant within the six month period (see also People v. Carter, 91 NY2d 795, 675 NYS2d 523 [1998]; People v. Freeman, ___AD3d___, 833 NYS2d 777 [4th Dept 2007]). While the language of the cases usually references filing the indictment and readiness statement contemporaneously (see Carter, 91 NY2d 795, 676 NYS2d 523 [1998]; Goss, 87 NY2d 792, 642 NYS2d 607 [1996]; People v. Price 234 AD2d 973, 651 NYS2d 815 [4th Dept 1996]), that does not appear to be mandatory or determinative. Here, the indictment was filed five days before the expiration of the 30.30 period and therefore it was possible to arraign defendant within that period. Defendant would have no basis for a speedy trial motion until the remaining five days [*4]

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passed. On the fifth day, however, the People declared ready; under these circumstances it is irrelevant that the statement of readiness was not filed "contemporaneously" with the indictment. It was still filed prior to the expiration of the six months.

Finally, defendant's attempt to charge the People with the time between the filing of the indictment and defendant's arraignment is barred by Goss and Carter (see also People v. Nielson, 306 AD2d 500, 761 NYS2d 316 [2d Dept 2003]). Accordingly, the motion to dismiss must be denied.

Dated: Little Valley, New York

October 15, 2007

_________________________

HON. LARRY M. HIMELEIN

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