People v Rini (Frank)

[*1] People v Rini (Frank) 2012 NY Slip Op 50302(U) Decided on February 15, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 15, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2010-2412 RI CR.

The People of the State of New York, Appellant,

against

Frank Rini, Respondent.

Appeal from an order of the Criminal Court of the City of New York, Richmond County (Desmond A. Green, J.), dated July 12, 2010. The order, insofar as appealed from as limited by the brief, upon granting the branch of defendant's motion seeking leave to renew his prior motion to dismiss the accusatory instrument, granted the motion to dismiss the accusatory instrument.

ORDERED that the order, insofar as appealed from, is reversed, on the law, upon renewal, defendant's motion to dismiss the accusatory instrument is denied, the accusatory instrument is reinstated, and the matter is remitted to the Criminal Court for all further proceedings thereon.

On March 23, 2009, defendant was arraigned on a misdemeanor complaint, filed that same day, charging him with aggravated harassment in the second degree (Penal Law § 240.30 [1] [a]), and the matter was adjourned until April 13, 2009. At that time, the People informed the Criminal Court that they needed to obtain the supporting deposition of complainant before converting the misdemeanor complaint into an information. The Criminal Court adjourned the matter until June 23, 2009 for arraignment on an information, provided the People produced complainant's supporting deposition.

On May 7, 2009, the People served and filed a superseding information, containing complainant's sworn statement, a witness's supporting deposition and a certificate of trial readiness. On June 23, 2009, the Criminal Court arraigned defendant on the superseding information. Thereafter, defendant moved to dismiss the accusatory instrument on the ground [*2]that he was denied his statutory (see CPL 30.30 [1] [b]) and constitutional (see CPL 30.20) rights to a speedy trial. Defendant argued, among other things, that the statement of readiness made by the People was invalid because the People had failed to schedule his second arraignment within 90 days of the commencement of the action (see CPL 30.30 [1] [b]). The Criminal Court initially denied the motion but, upon renewal, granted the motion and dismissed the accusatory instrument.

Contrary to defendant's contention, the People properly tolled the speedy trial clock when they filed their certificate of readiness well before the expiration of the 90-day statutory period (see People v Carter, 91 NY2d 795, 798 [1998]; People v Goss, 87 NY2d 792, 797 [1996]; People v Rickard, 71 AD3d 1420, 1421 [2010]; People v Lindsey, 52 AD3d 527, 530 [2008]). Since there was ample time thereafter to arraign defendant, the People's statement of readiness cannot be considered ineffective (compare People v England, 84 NY2d 1 [1994] [the People's pre-arraignment statement of readiness was ineffective, where the People waited until the last day of the statutory period to secure an indictment, making it impossible to arraign defendant within the statutory period]). To the extent defendant suggests that it was the People's responsibility to advance the case for arraignment, defendant cites to no authority in support of his position. To the contrary, the scheduling of defendant's arraignment "is the responsibility of the court rather than the People" (People v Rickard, 71 AD3d at 1421; see CPL 170.10; People v Ress, 25 Misc 3d 82, 83 [App Term, 9th & 10th Jud Dists 2009]).[FN1] Thus, the People may not properly be charged with the delay between their operative pre-arraignment declaration of readiness, on May 7, 2009, and defendant's scheduled arraignment on June 23, 2009.

While defendant's initial and renewal motions to dismiss the superseding information also asserted that he was denied his constitutional right to a speedy trial pursuant to CPL 30.20, defendant asserted no arguments in these motions as to why the information should be dismissed on this ground (People v Rodriguez, 27 Misc 3d 135[A], 2010 NY Slip Op 50753[U] [App Term, 9th & 10th Jud Dists 2010]; see People v Taranovich, 37 NY2d 442, 445 [1975]).

In view of the foregoing, we find that the Criminal Court improperly granted defendant's motion to dismiss the information.

Weston, J.P., and Rios, JJ., concur.

Golia, J., concurs in the result in the following memorandum:

While I concur in the result, I find it necessary to express my opinion as to one aspect of this decision. I do not believe it is the role of this court or any court to direct the District Attorney to engage in certain practices which essentially involve matters of prosecutorial discretion. How a District Attorney runs his or her office is within his or her discretion. It is not for a court to intervene in such discretionary practices or offer unsolicited advisements, by decision or footnote. [*3]
Decision Date: February 15, 2012 Footnotes

Footnote 1:Although it is the court's responsibility to schedule the arraignment, the better practice in this case would have been for the People to advance the matter for arraignment, especially after having been directed to do so by the court on April 13, 2009.