People v Orduna
Annotate this CaseDecided on February 3, 2009
Supreme Court, Kings County
The People of the State of New York
against
Freddy Orduna, DEFENDANT
6340-07
For the People: Hon. Charles J. Hynes, District Attorney, Kings County, Assistant District Attorney Ernest Chin, of counsel
For the Defense: Alex Grosshtern, Esq.
Joseph Kevin McKay, J.
Defendant's motion to dismiss this indictment pursuant to a violation of C.P.L. §
30.30 is GRANTED.
Both sides agree that the entire period from the filing of the felony complaint (charging various violations Article 220 of the Penal Law) on July 1, 2007 until the filing of the original indictment (number 6340-07) with a statement of readiness (a copy of which was sent promptly to the defense) on December 3, 2007, a total of 154 [FN1] days, is chargeable to the prosecution. Also agreed is that the applicable C.P.L. § 30.30 six month period for this action amounts to 184 days. At issue is the time period between April 23, 2008 and June 6, 2008, the date the superseding indictment (number 5643-08) with a new statement of readiness was filed, a total of 44 days.
On April 23, 2008 the Court, having inspected the Grand Jury minutes, dismissed two sale counts in former indictment number 6340-07, with leave granted to the People to re-present those counts. (See copy of the Court's Decision and Order of April 23, 2008 attached hereto). The case was then adjourned to June 9, 2008 for further Grand Jury action. On June 9, 2008 the prosecution announced that a True Bill had been returned by a second Grand Jury not only with respect to the two dismissed counts but also for all other counts, the entire case having been re-submitted to this second Grand Jury. It was determined that the new indictment was filed with the Court on June 6, 2008 with a new statement of readiness. The defendant was thereafter arraigned on the superseding indictment number 5643-08 in due course on July 18, 2008. [*2]
Notwithstanding some decisions arguably to the contrary, the weight of authority persuades the Court to charge this entire period of delay to the prosecution. See People v. Fehr, 45 AD3d 920, 923 (3d Dept 2007), lv denied 10 NY3d 764 (2008); People v. Dearstyne, 230 AD2d 953, 955 (3d Dept 1996), lv denied 89 NY2d 921 (1996); People v. Bryant, 153 AD2d 636, 639 (2d Dept 1989), lv denied, 74 NY2d 894 (1989); People v. Traficante, 143 AD2d 443, 445 (3d Dept 1988); People v. Pappas, 128 AD2d 556, 558 (2d Dept 1987); People v. Cortes, 80 NY2d 201, 214 (1992). But see People v. Anderson, 252 AD2d 399, 400 (1st Dept 1998), lv denied 92 NY2d 1027 (1998); People v. Terry, 225 AD2d 306, 307 (1st Dept 1996), lv denied, 88 NY2d 886 (1996); People v. Gutter, 222 AD2d 330 (1st Dept 1995); People v. Heller, 120 AD2d 612 (2d Dept 1986), lv denied 68 NY2d 757 (1986).
The People rely on several appellate decisions cited above to support their position that their original statement of readiness on the first indictment permits the exclusion of the April 23 to June 6, 2008 period. The prosecution continued to be technically ready to proceed to trial on the sustained counts, while re-presenting the dismissed sale counts, the argument goes.
This argument is hyper-technical and does not correspond to the realities of trial court practice. The prosecutor never signaled his intention to move the sustained counts to trial or to proceed in any fashion other than to go back to the Grand Jury to remedy the problem which had caused the Court to dismiss the two sale counts, so vital to the prosecution's case. In reality, the adjournment was caused by the prosecutor's original faulty presentation to the first Grand Jury, and was for the sole purpose of giving the prosecution time to fix the problem, which affected the major part of the case. Moreover, it turns out that the entire first indictment was dismissed as superseded. It is axiomatic that this delay must be tacked onto the original pre-indictment period of delay. People v. Sinstaj, 67 NY2d 236 (1986).
By the Court's calculations, once this latter delay of 44 days is added to the 155 days of pre-indictment delay, the result is 199 days of chargeable time to the prosecution. This indictment is therefore DISMISSED with prejudice. Stay sealing until March 5, 2009.
IT IS SO ORDERED.
ENTER,
_______________________
J.S.C.
Footnotes
Footnote 1: The Court calculates the period to
be 155 days.
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