People v Kissel (John)

[*1] People v Kissel (John) 2007 NY Slip Op 52358(U) [18 Misc 3d 126(A)] Decided on December 13, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1621 S CR.

The People of the State of New York, Appellant,

against

John M. Kissel, Respondent.

Appeal from an order of the Justice Court of the Town of Southampton, Suffolk County (Thomas J. DeMayo, J.), entered April 29, 2006. The order granted defendant's CPL 30.30 motion to dismiss the accusatory instrument.

Order reversed on the law, defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 denied and the accusatory instrument reinstated.

In this prosecution for driving while intoxicated, the defendant moved, pursuant to CPL 30.30, to dismiss the accusatory instrument on the ground that he was denied his statutory right to a speedy trial. In granting the motion, the court below failed to make the requisite findings of fact and conclusions of law as to the nature of the adjournments and the parties' contentions with respect to the exclusion of speedy trial time. Moreover, the court improperly granted the motion on the additional ground that defendant was denied his constitutional right to a speedy trial (see CPL 30.20), a claim defendant never asserted below.

As the People properly conceded below, the adjournments from November 13, 2003 to January 8, 2004 (56 days) and from September 1, 2005 to September 22, 2005 (21 days), at their request and upon their confession of nonreadiness for trial, are chargeable to them. However, the record reveals no basis to reject, as illusory, the People's declaration of trial readiness at the October 21, 2003 arraignment (People v Acosta, 249 AD2d 161 [1998]) and establishes that the adjournment from arraignment to November 13, 2003, was at defendant's request. Thus, there remains 13 days for the People to bring this prosecution to trial, and defendant's motion to dismiss pursuant to CPL 30.30 should have been denied.

We note that the court's dismissal, sua sponte, on constitutional speedy trial grounds was improper as the People had no notice that the court contemplated dismissal on that ground and were afforded no opportunity to respond to the issue, which was not raised by the defense in its [*2]motion papers (People v Kozoriz, 15 Misc 3d 141[A], 2007 NY Slip Op 51068[U] [App Term, 2d & 11th Jud Dists]; People v Striefler, 2003 NY Slip Op 50937[U] [App Term, 9th & 10th Jud Dists]).

In view of the foregoing, the order is reversed, defendant's motion to dismiss pursuant to CPL 30.30 is denied and the accusatory instrument is reinstated.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: December 13, 2007