| People v Farkas |
| 2009 NY Slip Op 06344 [65 AD3d 700] |
| August 25, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v IsidoreFarkas, Respondent. |
—[*1] Meissner, Kleinberg & Finkel, LLP, New York, N.Y. (Ronald M. Kleinberg, Richard A.Finkel, and Adam Hurt of counsel), for respondent.
Appeal by the People, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (McKay, J.), dated July 31, 2008, as granted that branch of the defendant'smotion which was to dismiss counts one, two, three, four, seven, and eight of the indictmentpursuant to CPL 30.30.
Ordered that the order is reversed insofar as appealed from, on the law and the facts, thedefendant's motion to dismiss counts one, two, three, four, seven, and eight of the indictment isdenied, those counts of the indictment are reinstated, and the matter is remitted to the SupremeCourt, Kings County, for further proceedings on the indictment.
On August 18, 2005, in the Borough Park section of Brooklyn, the defendant observed thecomplainant inspecting and photographing a construction site that the defendant owned. Thedefendant confronted the complainant and, after the complainant attempted to walk away, thedefendant allegedly punched him in the face. A few minutes later, the police issued a deskappearance ticket (hereinafter DAT) to the defendant in connection with the incident. OnSeptember 26, 2005, the defendant appeared in Criminal Court and signed the DATpostponement log as the People had not yet filed an accusatory instrument. It is undisputed that,by reason of the defendant's appearance in court on September 26, 2005, the action is deemed tohave commenced on that date (see People v Stirrup, 91 NY2d 434, 439 [1998]).
On October 27, 2005, a misdemeanor complaint was filed, charging the defendant withmenacing in the third degree (see Penal Law § 120.15), harassment in the seconddegree (see Penal Law § 240.26 [1]), and assault in the third degree (seePenal Law § 120.00 [1]). After several adjournments in Criminal Court and thePeople's assertion of readiness for trial, an indictment was filed based on the same incident,charging the defendant with robbery in the first, second, and third degrees (see PenalLaw § 160.15 [1]; § 160.10 [2] [a]; § 160.05), petit larceny (see PenalLaw § 155.25), assault in the second and third degrees (see Penal Law §120.05 [1]; § 120.00 [1]), grand larceny in the fourth degree (see Penal Law§ 155.30 [5]), criminal possession of stolen property in the fourth degree (seePenal Law § 165.45 [1]), and menacing in the third degree (see Penal Law§ 120.15). The theft-related counts were predicated on an allegation that, in addition toassaulting the complainant, the defendant had forcibly taken [*2]his camera. The defendant moved to dismiss those counts, arguingthat they were filed more than six months after the defendant had appeared on the DAT and,because the theft-related counts were not directly derived from the originally filed misdemeanorcharges, any earlier assertion of readiness by the People and any finding that previous delayswere excludable under CPL 30.30 did not apply to the newly charged theft-related offenses. ThePeople opposed the motion, arguing only that there were sufficient excludable periods from thecommencement of the action to deny the motion and that those excludable periods and thePeople's statement of readiness were applicable to the theft-related charges as well. The SupremeCourt agreed with the defendant, and it dismissed the theft-related charges pursuant to CPL30.30. We reverse.
The theft-related counts were based on the same incident, and many of the same acts,including the use of force, originally charged in the misdemeanor complaint. Consequently, thestatement of readiness and the excludable periods pertaining to the original accusatoryinstrument applied to the theft-related charges as well (see People v Sinistaj, 67 NY2d236, 239, 241 n 4 [1986]; People vBello, 24 AD3d 236, 236-237 [2005]; People v Brickley, 306 AD2d 551, 553[2003]; People v Stone, 265 AD2d 891, 892 [1999]; People v Sanasie, 238 AD2d186, 186-187 [1997]; People v Rosario, 176 AD2d 830, 831 [1991]). When thatstatement of readiness and the excludable periods are considered, the People were ready toproceed within the six months required on all of the charges in the indictment (see CPL30.30 [1] [a]).
In light of our determination, we do not reach the People's alternative argument for reversalwhich, in any event, was not raised in the trial court. Fisher, J.P., Miller, Angiolillo and Hall, JJ.,concur.