| People v Rivas |
| 2010 NY Slip Op 07972 [78 AD3d 739] |
| November 3, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Appellant, v JohnnyRivas, Respondent. |
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Appeal by the People from an order of the Supreme Court, Queens County (Hollie, J.), datedSeptember 10, 2008, which granted the defendant's motion to dismiss the indictment pursuant to CPL30.30.
Ordered that the order is affirmed.
On May 3, 2007, the defendant allegedly broke into a dwelling and committed various crimes. Hewas arrested soon thereafter, and was charged in a felony complaint. After arraignment in criminal courton that complaint, the defendant waived his speedy trial rights while the parties attempted to arrive at adisposition. The defendant's waiver was scheduled to expire on July 16, 2007. On the fourth courtdate, July 2, 2007, the parties again sought an adjournment on consent for the purpose of pleanegotiations. The Supreme Court denied the request. Instead, it adjourned the case for grand juryaction, and charged the People with that portion of the adjournment following the expiration of thedefendant's speedy trial waiver. After three more adjournments for grand jury action, the Peopleobtained an indictment and announced their readiness for trial. The defendant moved to dismiss theindictment pursuant to CPL 30.30, and the Supreme Court granted the motion, concluding that morethan six months were chargeable to the People, including the 63-day period between July 16, 2007,when the defendant's previous CPL 30.30 waiver expired, and September 17, 2007, the nextadjourned date. The People appeal.
The only period of time at issue on the appeal is the 63-day period between July 16, 2007, andSeptember 17, 2007. The People contend that the period in question is excludable for purposes ofCPL 30.30 because the defendant expressly consented to the adjournment, and because the SupremeCourt is without authority to contravene a specific exclusion provided in CPL 30.30. We disagree.
CPL 30.30 (4) provides in pertinent part: "In computing the time within which the people must beready for trial . . . the following periods must be excluded: . . . (b) the periodof delay resulting from a continuance granted by the court at the request of, or with the consent of, thedefendant or his counsel. The court must grant such a continuance only if it is satisfied thatpostponement is in the interest of justice, taking into account the public interest in the promptdispositions of criminal charges." Contrary to the People's contention, the parties may not, byagreement, bind the Supreme Court in determining whether [*2]anadjournment is chargeable or excludable. To the contrary, the Supreme Court is obligated to grant anadjournment on consent "only if it is satisfied that postponement is in the interest of justice, taking intoaccount the public interest in the prompt dispositions of criminal charges" (CPL 30.30 [4] [b]; seePeople v Worley, 66 NY2d 523, 528).
Here, on the record presented, the Supreme Court did not improvidently exercise its discretion indenying the parties' request for an adjournment on consent, and properly charged the 63-day period tothe People. Since the total period of time chargeable to the People exceeded six months, the SupremeCourt properly granted the defendant's motion to dismiss the indictment pursuant to CPL 30.30. Fisher,J.P., Dillon, Florio and Lott, JJ., concur.