People v Holmes (Maurice)

[*1] People v Holmes (Maurice) 2015 NY Slip Op 51372(U) Decided on September 25, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 25, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
15-251

The People of the State of New York, Appellant,

against

Maurice Holmes, Defendant-Respondent.

The People appeal from an order of the Criminal Court of the City of New York, Bronx County (Shari R. Michels, J.), dated February 14, 2014, which granted those branches of defendant's motion to dismiss, pursuant to CPL 30.30, so much of the accusatory instrument as charged defendant with third degree assault (one count), menacing (one count), criminal possession of marijuana in the fifth degree, unlawful possession of marijuana, and harassment in the second degree (one count).

Per Curiam.

Order (Shari R. Michels, J.), dated February 14, 2014, reversed, on the law, motion denied, and the charges of third degree assault (one count), menacing (one count), criminal possession of marijuana in the fifth degree, unlawful possession of marijuana, and second degree harassment (one count) reinstated, and matter remanded to Criminal Court for further proceedings.

Defendant's 30.30 motion should have been denied in its entirety. The 49-day period at issue was excludable under CPL 30.30(4)(g), which allows exceptional circumstances, such as the unavailability of a prosecution witness for medical reasons, to justify periods of delay not expressly covered by the statute, even in the absence of a formal continuance (see People v Goodman, 41 NY2d 888 [1977]). The People made a sufficient showing of exceptional circumstances through their unchallenged representations of the arresting police officer's unavailability due to legitimate medical reasons (see People v Alcequier, 15 AD3d 162 [2005], lv denied 4 NY3d 851 [2005]; People v Celestino, 201 AD2d 91, 95 [1994]). Deduction of this 49-day period from the total 100 days found by the motion court brings the time chargeable to the prosecution within the 90—day statutory period.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: September 25, 2015