| People v Whitley |
| 2009 NY Slip Op 09056 [68 AD3d 790] |
| December 1, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v LeroyWhitley, Respondent. |
—[*1] Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for respondent.
Appeal by the People, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (D'Emic, J.), entered May 7, 2008, as, upon reargument, adhered to itsdetermination in an order of the same court dated November 19, 2007, granting the defendant'smotion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was deprived ofhis statutory right to a speedy trial.
Ordered that the order entered May 7, 2008 is reversed insofar as appealed from, on the law,upon reargument, the determination in the order dated November 19, 2007, granting thedefendant's motion to dismiss the indictment is vacated, the defendant's motion to dismiss theindictment is denied, the indictment is reinstated, and the matter is remitted to the SupremeCourt, Kings County, for further proceedings on the indictment.
The People failed to preserve for appellate review their contention that a separate speedytrial period should have been applied to each of three accusatory instruments filed against thedefendant, including the indictment that is the subject of the instant appeal (see CPL470.05 [2]), and we decline to reach the argument in the exercise of our interest of justicejurisdiction (see CPL 470.15 [3] [c]). Since, accordingly, we must measure the six-monthspeedy trial period from the filing of indictment No. 3930/06 on May 20, 2006, the six-monthperiod referable to this case, measured from May 20, 2006 to November 20, 2006 consisted of184 days (see People v Allen, 172 AD2d 542 [1991]). The Supreme Court determinedthat 192 days were chargeable to the People. We disagree.
Contrary to the determination of the Supreme Court, the People should not have beencharged with the 27-day period of delay between September 6, 2007 and October 3, 2007 since anewly appointed defense counsel requested an adjournment over that period to familiarizehimself with the case (see People v Worley, 66 NY2d 523, 527 [1985]; People vAlvarado, 281 AD2d 318, 319 [2001]). The People should also not have been charged withthe 14-day period of delay between October 3, 2007 and October 17, 2007 since this was areasonable period within which to respond to the defendant's pro se motion to reargue the court'sdenial of a prior CPL 30.30 motion (see People v Gonzalez, 266 AD2d 562, 563 [1999]).Additionally, the People should not have been charged with the five-day period of delay [*2]between October 17, 2007 and October 22, 2007 because thedefendant was without counsel during that time through no fault of the court (see People vMannino, 306 AD2d 157, 158 [2003]; CPL 30.30 [4] [f]). Further, the People should nothave been charged with the seven-day period of delay between October 22, 2007 and October29, 2007 because the adjournment covering that period was granted at defense counsel's request(see People v Brown, 195 AD2d 310, 311 [1993]). Finally, the People should not havebeen charged with the 14-day period of delay between October 29, 2007 and November 12, 2007since this was a reasonable period within which to respond to the defendant's motion for releasepursuant to CPL 30.30 (2).
Accordingly, the People should only have been charged with 125 days, rather the 192 daysdetermined by the Supreme Court. Since the amount of time chargeable to the People does notexceed 184 days, upon reargument, the defendant's motion to dismiss the indictment should havebeen denied. Mastro, J.P., Belen, Hall and Austin, JJ., concur.