| People v Jordan |
| 2007 NY Slip Op 06899 [43 AD3d 1076] |
| September 18, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v JeromeJordan, Respondent. |
—[*1] Herbert Kellner, Smithtown, N.Y., for respondent.
Appeal by the People from an order of the Supreme Court, Queens County (Eng, J.), datedDecember 15, 2005, which, upon a decision of the same court also dated December 15, 2005,granted the defendant's motion pursuant to CPL 30.10 (2) (b) to dismiss the indictment astime-barred.
Ordered that the order is affirmed.
The Supreme Court properly determined that the indictment charging the defendant withtampering with physical evidence was time-barred. CPL 30.10 (2) (b) provides that theprosecution for a non-class A felony must be commenced within five years after the commissionof the offense (see People v Knobel, 259 AD2d 499 [1999]). Here, it is undisputed thatthe defendant was not indicted for tampering with physical evidence until more than five yearsafter the commission of that offense. Although the toll provided by CPL 30.10 (4) (a) (ii) withrespect to any period during which "the whereabouts of the defendant were continuouslyunknown and continuously unascertainable by the exercise of reasonable diligence" applies toany period during which the police "have not identified the perpetrator at all and thus cannotdetermine where he or she is" (People v Seda, 93 NY2d 307, 311 [1999]), it cannot beread to exclude the period of time during which the police are unaware of the commission of theoffense itself. Had the Legislature intended a more expansive application of the tolling provision,it could have so provided, as it did in CPL 30.10 (3) (a), (c). Since those provisions do not applyhere, the Supreme Court properly dismissed the indictment as time-barred. Spolzino, J.P., Florio,Skelos and McCarthy, JJ., concur.