People v Rodriguez (Jose)
Annotate this CaseDecided on April 21, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2009-492 S CR.
The People of the State of New York, Appellant,
against
Jose L. Rodriguez, Respondent.
Appeal from an order of the Justice Court of the Town of Riverhead, Suffolk County
(Richard A. Ehlers, J.), entered February 20, 2009. The order granted defendant's motion to
dismiss the accusatory instrument.
ORDERED that the order is reversed, on the law, defendant's motion to dismiss the accusatory instrument is denied, the accusatory instrument is reinstated, and the matter is remitted to the Justice Court for all further proceedings thereon.
On May 28, 2008, defendant was issued a desk appearance ticket charging him with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), a misdemeanor. The desk appearance ticket ordered defendant to appear in court on June 16, 2008. Thereafter, the People filed an accusatory instrument (dated May 29, 2008) charging defendant with the same offense. Defendant subsequently moved to dismiss the accusatory instrument on the ground that he was denied his statutory (see CPL 30.30 [1] [b]) and constitutional (see CPL 30.20) rights to a speedy trial. The Justice Court granted defendant's motion and dismissed the accusatory instrument. The People appeal.
Since defendant was charged with a misdemeanor punishable by a sentence of imprisonment of more than three months and was not charged with a felony, the People were required to be ready for trial within 90 days of the commencement of the action (see CPL 30.30 [1] [b]). The instant action was commenced on June 16, 2008, the date on which defendant appeared in court for the first time in response to the desk appearance ticket (see CPL 30.30 [5] [b]; People v Stirrup, 91 NY2d 434 [1998]).
In his motion to dismiss, defendant argued that the statements of readiness made by the People were illusory since the accusatory instrument was jurisdictionally defective because there was no laboratory report indicating that the substance found in defendant's possession was in fact [*2]crack cocaine. We disagree and find that the accusatory instrument was a legally sufficient information since the investigator stated therein that his belief that the substance he found in defendant's possession was crack cocaine was based on his training and experience, the packaging of the substance, oral admissions of defendant and a positive field test (see People v Kalin, 12 NY3d 225, 231 [2009]).
The People initially declared readiness on June 16, 2008. Once the People declared readiness, the speedy trial clock was tolled. However, it was incumbent upon the People to maintain their readiness. Any delay on the part of the People occurring after their declaration of readiness is chargeable to the People (see People v Giordano, 56 NY2d 524 [1982]). After examining the remaining adjournments, we reject defendant's contention that he was denied his statutory right to a speedy trial (see CPL 30.30 [1] [b]). The adjournments were either made at the request of defendant (see CPL 30.30 [4] [b]), for a period of time when defendant was without counsel through no fault of the court (see CPL 30.30 [4] [f]), or following a pre-trial motion made by defendant, and included the time period during which said motion was under consideration by the court (see CPL 30.30 [4] [a]). Consequently, none of these adjournments were chargeable to the People.
Furthermore, while defendant's motion to dismiss the information also asserted as a ground therefor that he was denied his constitutional right to a speedy trial pursuant to CPL 30.20, defendant asserted no arguments in his motion as to why the information should be dismissed on such basis (see People v Taranovich, 37 NY2d 442, 445 [1975]).
In view of the foregoing, we find that the Justice Court improperly granted defendant's motion to dismiss the information.
Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: April 21, 2010
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