People v Allen (Charles)

[*1] People v Allen (Charles) 2005 NY Slip Op 51681(U) [9 Misc 3d 135(A)] Decided on October 20, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
2004-1308 K CR

THE PEOPLE OF THE STATE OF NEW YORK, Appellant,

against

CHARLES ALLEN, Respondent.

Appeal from an order of the Criminal Court of the City of New York, Kings County (Margarita Lopez-Torres, J.), entered July 21, 2004. The order granted defendant's CPL 30.30 motion dismissing the information.

Order unanimously reversed on the law, defendant's motion to dismiss the information denied, and matter remanded to the court below for all further proceedings thereon.

Having declared their trial readiness on September 17, 2003 following adjournments not chargeable to them, the People thereafter were properly not charged with any of the postreadiness adjournments until the adjournments of January 6, 2004 to February 5, 2004 and February 24, 2004 to March 8, 2004, and the first 7 days of the adjournment from April 13, 2004 to April 26, 2004, the only portion of which the People had requested, a total of 34 days. We find, however, that the court should have charged the People with only 3 days of the April 26, 2004 to May 27, 2004 adjournment in light of the People's April 29, 2004 filing of a written trial readiness statement which, we find, effectively tolled the CPL 30.30 time (People v Stirrup, 91 NY2d 434, 440 [1998]; People v Douglas, 264 AD2d 671 [1999]; People v Simpkins, 193 Misc 2d 447, 448 [App Term, 1st Dept 2002]).

The court properly charged the People with the adjournment of May 27, 2004 to June 9, 2004, as the record is insufficiently informative as to the circumstances of the trial prosecutor's unavailability (People v Stirrup, 91 NY2d at 440) and in light of the People's failure below to offer "an unequivocal statement by someone with firsthand knowledge" of the facts (People v [*2]Collins, 82 NY2d 177, 182 [1993]) that another assistant was available to try the case (People v Jones, 68 NY2d 717, 718 [1986]; People v Ali, 209 AD2d 227 [1994]). However, the court should not have charged the People with more than the one day's adjournment they requested, on June 9, 2004. Defense counsel's active participation in the determination not to proceed on the following day and to adjourn the matter to June 23, 2004, to accommodate his own court schedule (People v Matthews, 227 AD2d 313, 314 [1986]; cf. People v Smith, 82 NY2d 676, 678 [1993]), and his concession that only one day would be charged to the People, revealed his "clearly expressed" consent to the extended adjournment (People v Liotta, 79 NY2d 841, 843 [1992]). Defendant's motion to dismiss and the court's determination thereon tolled the statutory speedy time, leaving 51 days presently chargeable to the People. Accordingly, the motion to dismiss should have been denied.
Decision Date: October 20, 2005