| People v Sant |
| 2014 NY Slip Op 05658 [120 AD3d 517] |
| August 6, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v David Sant, Respondent. |
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel),for appellant.
Scott Lockwood, North Babylon, N.Y., for respondent.
Appeal by the People, as limited by their brief, from so much of an order of theCounty Court, Suffolk County (Weber, J.), dated February 21, 2012, as, after a hearing,granted that branch of the defendant's motion pursuant to CPL 30.30 which was todismiss the indictment on the ground that he was deprived of his statutory right to aspeedy trial.
Ordered that the order is modified, on the law and the facts, by deleting the provisionthereof granting that branch of the defendant's motion pursuant to CPL 30.30 which wasto dismiss counts three through six of the indictment on the ground that he was deprivedof his statutory right to a speedy trial, and substituting therefor a provision denying thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from,counts three through six of the indictment are reinstated, and the matter is remitted to theCounty Court, Suffolk County, for further proceedings on those counts of theindictment.
On February 6, 2009, the defendant was charged and arraigned by felony complaint(hereinafter the February 2009 docket) as to crimes arising from his alleged possession,on October 10, 2008, of a stolen all-terrain vehicle (hereinafter ATV). On August 7,2009, the defendant was charged and arraigned by felony complaints (hereinafter theAugust 2009 dockets) as to crimes arising from his alleged possession, on February 5,2009, of two other stolen ATVs. On May 18, 2010, the defendant was arraigned on anindictment containing six counts. Counts one and two charged the defendant with thecriminal transactions alleged in the felony complaint previously pending under theFebruary 2009 docket, and counts three through six charged him with the criminaltransactions alleged in the felony complaints previously pending under the August 2009dockets. On that day, May 18, 2010, the People announced their readiness for trial.
On or about October 25, 2010, the defendant moved, inter alia, pursuant to CPL30.30, to dismiss the indictment on the ground that he was deprived of his statutory rightto a speedy trial. In an order dated January 31, 2012, the County Court determined thattwo time periods were chargeable to the People, July 15, 2009, to September 16, 2009,and January 13, 2010, to March 17, 2010. The court directed that a hearing be held as towhether there were any other periods chargeable to the People that were not chargedpursuant to its order.
[*2] Following ahearing, the County Court issued an order dated February 21, 2012, which is the subjectof this appeal, in which it concluded that the defendant was deprived of his statutoryright to a speedy trial. The court determined that the People were chargeable with 194days of delay between the commencement date of the defendant's prosecution, February6, 2009, and his arraignment on the indictment on May 18, 2010, and dismissed theindictment in its entirety.
Contrary to the defendant's position, the People's contention that a separate speedytrial time period should have been applied to counts three through six of the indictment ispreserved for appellate review (see CPL 470.05 [2]).
Where a defendant is charged with a felony, CPL 30.30 requires the People to beready for trial within six months of the commencement of the criminal action (seeCPL 30.30 [1] [a]; People v Cortes, 80 NY2d 201, 208 [1992]). A criminalaction is commenced when the first accusatory instrument is filed, and "includes thefiling of all further accusatory instruments directly derived from the initial one" (CPL1.20 [16] [b]; see People v Sinistaj, 67 NY2d 236, 239 [1986]). Therefore,subsequent accusatory instruments that are "directly derived" from the first instrumentwill relate back to the first instrument for purposes of assessing the People's compliancewith their speedy trial obligations (People v Sinistaj, 67 NY2d at 241 n 4[internal quotation marks omitted]; see People v Lomax, 50 NY2d 351, 356[1980]; People ex rel. Greenstein v Sheriff of Schenectady County, 220 AD2d190, 193 [1996]). The filing of a felony complaint signals the commencement of acriminal action (see CPL 1.20 [1], [17]). Where, however, "the felony complaintand subsequently filed indictment allege separate and distinct criminal transactions, thespeedy trial time clock commences to run upon the filing of the indictment with respectto the new charges" (People v Dearstyne, 230 AD2d 953, 955 [1996]; see People v Nelson, 68 AD3d1252, 1254 [2009]).
As the People correctly contend, counts three through six of the indictment did notdirectly derive from the felony complaint filed on February 6, 2009, under the February2009 docket, for the purpose of calculating the six-month speedy trial limitationprescribed by CPL 30.30 (1) (a). Although counts one and two of the indictment directlyderive from the charges in the February 2009 docket, counts three through six of the indictment do not. Counts three through sixcharge the defendant with crimes based upon acts alleged to have occurred on February5, 2009, and allege that the defendant possessed two ATVs different from the ATV thatthe February 2009 docket alleges that the defendant possessed. Counts three through sixallege separate and distinct criminal transactions from those that were charged in theFebruary 2009 docket, and thus do not directly derive from the felony complaint filed onFebruary 6, 2009 (see People v Dearstyne, 230 AD2d at 955; People vSchaffer, 200 AD2d 695, 695 [1994]; People v Murray, 127 AD2d 704, 705[1987]). Counts three through six of the indictment relate back to the felony complaintsfiled on August 7, 2009. Accordingly, the speedy trial time clock for these countscommenced to run on August 7, 2009. As a result, as to counts three through six of theindictment, the People should not have been charged with any speedy trial time prior toAugust 7, 2009. Since, pursuant to the County Court's January 31, 2012, order, thePeople were charged with a delay of 41 days from August 7, 2009, to September 16,2009, and 63 days from January 13, 2010, to March 17, 2010, for a total of 104 days, thePeople complied with their speedy trial obligations under CPL 30.30 (1) (a) (seePeople v Anderson, 252 AD2d 399, 401 [1998]). Accordingly, counts three throughsix were improperly dismissed.
The People's remaining contentions are without merit. Mastro, J.P., Dickerson,Hinds-Radix and Duffy, JJ., concur.