People v Ortiz (Fernando)

[*1] People v Ortiz (Fernando) 2005 NY Slip Op 52128(U) [10 Misc 3d 136(A)] Decided on December 19, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ.
2005-181 K CR

The People of the State of New York, Appellant,

against

Fernando Ortiz, Respondent.

Appeal from an order of the Criminal Court of the City of New York, Kings County (Margarita Lopez-Torres, J.), dated December 22, 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.

The court's determination of the CPL 30.30 speedy trial time chargeable to the People was proper, with the exception of the post-readiness adjournment of June 16, 2004 to July 8, 2004, when the People filed a notice of trial readiness (People v Stirrup,
91 NY2d 434, 440 [1998]). On May 4, 2004, the People, having declared their trial readiness, were granted an adjournment in anticipation of a grand jury presentation (cf. CPL 170.20 [2]), which time was properly charged to them (People v Meiner, 248 AD2d 806, 807 [1998]; see generally People v Carter, 91 NY2d 795, 799 [1998]; People v Cortes, 80 NY2d 201, 210 [1992]; People v Dushain, 247 AD2d 234, 236 [1998]). However, on June 9, 2004, the People requested a one-week adjournment to June 16, 2004, ostensibly to consider whether to reduce the charges for trial, thereby clearly indicating that the CPL 170.20 process had concluded, which the court below implicitly recognized by adjourning the criminal court proceeding to July 26, 2004 for trial (cf. CPL 170.20 [2] [upon the People's application thereunder, "the local criminal court must adjourn the proceedings to a date which affords the district attorney reasonable opportunity to pursue such action, and may subsequently grant such further adjournments for that purpose as are reasonable under the circumstances"] [emphasis supplied]). Further, "[w]ith respect to periods of delay that occur following the People's statement of readiness, only those delays which [*2]are attributable to their inaction and directly implicate their ability to proceed with trial are charged against them . . . and any period of an adjournment in excess of that actually requested by the People is excluded" (People v Nielsen, 306 AD2d 500, 501 [2003]; see also People v Camillo, 279 AD2d 326 [2001] ["The fact that the court granted longer adjournments than requested by the People did not require such time to be charged to the People"]; People v Williams, 229 AD2d 603, 603-604 [1996] ["the court properly excluded the delay . . . in excess of the . . . adjournment requested by the People"]; People v Bailey, 221 AD2d 296 [1995] ["once the People answer ready for trial . . . their subsequent adjournment requests are chargeable to them only for the actual period(s) they requested"]). Therefore, subtracting the June 16, 2004 - July 8, 2004 period, 22 days from the chargeable time, the aggregate speedy trial time chargeable to the People is 76 days. In light of this determination we need not address the remaining claims of error raised by the People.
Decision Date: December 19, 2005