Appeal from judgments of the District Court of Nassau County, First District (Francis Ricigliano, J., on dismissal motion; Norman St. George, J., at trial and sentencing), rendered August 27, 2007. The judgments, after a nonjury trial, convicted defendant, respectively, of driving while intoxicated and leaving the scene of an incident without reporting. The appeal brings up for review the denial of defendant's motion to dismiss.

Judgments of conviction reversed, on the law, defendant's motion to dismiss the accusatory instruments granted, and fines, if paid, remitted.

The People filed two accusatory instruments charging defendant with, respectively, driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600 [1]) . Since one of these offenses was a misdemeanor punishable by a sentence of imprisonment of more than three months and neither offense was a felony, the People were required to be ready for trial within 90 days of the commencement of the action (CPL 30.30 [1] [b]). The action was commenced on June 25, 2004, the date on which the accusatory instruments were filed (CPL 1.20 [17]; People v Lomax, 50 NY2d 351 [1980]). Defendant moved to dismiss the accusatory instruments on the ground that his statutory right to a speedy trial was violated. The People conceded that they were chargeable with 87 days, and defendant argued that the People were also chargeable with the adjournments from June 28, 2004 through July 22, 2004, and January 6, 2005 through January 21, 2005. The District Court (Francis Ricigliano, J.) found said adjournments to be excludable and denied defendant's motion.

At the hearing on defendant's CPL 30.30 motion, a clerk of the court testified that, on December 14, 2004, she called both sides to inform them that the court was closed on the following adjourned date, January 6, 2005, and that she spoke to someone from defendant's [*2]attorney's office, who agreed to the new adjourned date of January 21, 2005.

In order for the adjournment from January 6, 2005 to January 21, 2005 to be excludable, the request for, or consent to, such adjournment must have been clearly expressed by defendant or defense counsel (see People v Liotta, 79 NY2d 841 [1992]; People v Brown, 206 AD2d 326 [1994]). After reviewing the record, including the minutes from the hearing on defendant's CPL 30.30 motion, it appears that someone from defendant's attorney's office merely agreed that January 21, 2005 was a convenient date for defense counsel to appear. Since the People had not yet declared readiness and the adjournment was made for court scheduling purposes, we conclude that said adjournment was chargeable to the People (see People v Collins, 82 NY2d 177 [1993]; People v Brown, 195 AD2d 310 [1993]). Consequently, in toto, the People are chargeable with over 90 days and, thus, defendant's motion to dismiss pursuant to CPL 30.30 (1) (b) is granted.

Accordingly, the judgments of conviction are reversed, the accusatory instruments are dismissed and fines, if paid, remitted.
Rudolph, P.J., Molia and Scheinkman, JJ., concur.
Decision Date: April 07, 2009