People v Lovallo (Vincent)

[*1] People v Lovallo (Vincent) 2009 NY Slip Op 50918(U) [23 Misc 3d 138(A)] Decided on May 11, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and SCHEINKMAN, JJ
2008-723 W CR.

The People of the State of New York, Appellant,

against

Vincent Lovallo, Respondent.

Appeal from an order of the Justice Court of the Town of Yorktown, Westchester County (William C. Gerstenzang, J.), dated February 1, 2008. The order granted the branch of defendant's motion seeking to dismiss the accusatory instrument on the ground that defendant was denied his right to a speedy trial.

Order reversed, on the law, the branch of defendant's motion seeking to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) denied, accusatory instrument reinstated and matter remitted to the Justice Court for a determination of the remaining branches of defendant's motion.

The Justice Court granted defendant's omnibus motion to the extent of dismissing the accusatory instrument filed on December 5, 2007, charging him with five counts of falsely reporting an incident in the third degree (Penal Law § 240.50 [4]), on the ground that defendant had been denied his right to a speedy trial (CPL 30.30 [1] [b]). In reaching this result, the court found the People chargeable with the 91-day period between September 5, 2007, the date its order was entered granting defendant's motion to dismiss the originally filed accusatory instrument as facially defective, and December 5, 2007, the date the People filed the instant accusatory instrument along with a statement of readiness. The People correctly argue that, since they were unaware of the court's order dismissing the original accusatory instrument until September 10, 2007, the day that they received said order, they should not have been charged with the five days between September 5, 2007 and September 10, 2007 (see People v Heine, 238 AD2d 212 [1997]). Consequently, the People were chargeable with only 86 days (September 10, 2007 through December 5, 2007).

Accordingly, the order is reversed, the branch of defendant's motion seeking to dismiss the accusatory instrument pursuant to CPL 30.30 (1) (b) is denied, the accusatory instrument is [*2]reinstated and the matter is remitted to the Justice Court for a determination of the remaining branches of defendant's motion.

Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: May 11, 2009