| People v Bigwarfe |
| 2015 NY Slip Op 04166 [128 AD3d 1170] |
| May 14, 2015 |
| Appellate Division, Third Department |
[*1](May 14, 2015)
| The People of the State of New York, Respondent, vTroy D. Bigwarfe, Appellant. |
Rosemary R. Philips, Canton, for appellant.
Mary E. Rain, District Attorney, Canton (Patricia C. Campbell of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered February 14, 2012, upon a verdict convicting defendant of thecrime of criminal sale of a controlled substance in the third degree (two counts).
On January 21, 2010, defendant was charged in a felony complaint with a singlecount of criminal sale of a controlled substance in the third degree, based on the sale ofone half of an 80 milligram Oxycontin pill to a police informant in August 2009.Thereafter, on July 29, 2010, defendant was indicted and charged with three counts ofcriminal sale of a controlled substance in the third degree: the first count was based onthe August 5, 2009 event underlying the felony complaint, and the remaining countswere based on two sales of the same amount of Oxycontin to the same informant onAugust 24, 2009. The People also announced their readiness for trial on July 29,2010.
Defendant thereafter moved to dismiss the indictment based on statutory speedy trialgrounds. The People conceded that count 1 was untimely, but otherwise opposed themotion. County Court initially granted the motion, but, upon the People's letter request toreconsider, ultimately reinstated counts 2 and 3 of the indictment. Following a jury trial,defendant was convicted on both counts and was sentenced to concurrent prison terms offour years on each count followed by two years of postrelease supervision. Defendantappeals.
Upon the filing of a felony complaint commencing a criminal action, the People mustbe [*2]ready for trial within six months (see CPL30.30 [1] [a]; People vNelson, 68 AD3d 1252, 1253 [2009]). A criminal action is commenced upon thefiling of the first accusatory instrument (see CPL 1.20 [16] [a]) and "includes thefiling of all further accusatory instruments directly derived from the initial one"(CPL 1.20 [16] [b] [emphasis added]; accord People ex rel. Greenstein v Sheriff ofSchenectady County, 220 AD2d 190, 192 [1996]). Here, the issue distills to whethercounts 2 and 3 of the indictment are directly derived from the felony complaint as part ofthe same criminal transaction (see People v Lowman, 103 AD3d 976, 977 [2013]). If so,the speedy trial time frame would relate back to the filing of the felony complaint; if not,that time period would be triggered by the indictment (see id.; People vNelson, 68 AD3d at 1254; People v Dearstyne, 230 AD2d 953, 955 [1996],lv denied 89 NY2d 921 [1996]).
As a threshold point, citing to CPL 210.20 (4), defendant maintains that, afterdismissing the indictment, County Court lacked authority to reconsider the matter simplyon the basis of the People's letter request. We disagree. CPL 210.20 (4) speaks to thecourt's authority to authorize the People to resubmit a charge to the grand jury, but onlywhere the indictment is dismissed on certain grounds that do not include a speedy trialviolation (see CPL 210.20 [1] [g]; [4]). The question here, however, is whetherthe court retains inherent authority to rectify a prior error in dismissing an indictment,and it is our
view that the court has such authority (see People v Rosa, 265 AD2d 167,167 [1999], lv denied 94 NY2d 884 [2000]; People v Clarke, 203 AD2d916, 916 [1994], lv denied 83 NY2d 965 [1994]; see also People vLynch, 162 AD2d 134, 134 [1990], lv denied 76 NY2d 941 [1990]).Although no formal reargument motion was made, which would have been preferable,the letter request alerted the court to the error, and the court conducted a hearing beforefinalizing the reinstatement of counts 2 and 3. Since defendant was given a fullopportunity to be heard on the reinstatement request, we perceive no error.
The further question is whether the events alleged in counts 2 and 3 of the indictmentare part of the same criminal transaction as count 1 (see CPL 40.10 [2] [b]).Although each sale involved the identical amount of Oxycontin and the sameparticipants, we find no error in County Court's conclusion that the two separate sales onAugust 24, 2009 were separate and distinct from the transaction occurring almost threeweeks earlier (see People vSant, 120 AD3d 517, 518-519 [2014]; People v Lowman, 103 AD3d at977-978; People v Brown,20 AD3d 577, 578-579 [2005], lv denied 5 NY3d 826 [2005]; People vDearstyne, 230 AD2d at 955). As such, the speedy trial period for counts 2 and 3commenced with the filing of the indictment, not the earlier felony complaint. It followsthat County Court properly denied defendant's speedy trial motion as to these counts ofthe indictment.
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.