People v. Rubiano

Legal Aid Society (Susanna De La Pava of counsel), for defendant. Charles J. Hynes, District Attorney of Kings County (Dennis C. Carletta of counsel), for plaintiff.

OPINION OF THE COURT

CHARLES A. POSNER, J. The defendant Salvatore Rubiano moves to dismiss the instant accusatory instrument pursuant to CPL 30.30 on the ground that he has been denied his right to a speedy trial. The motion poses the question as to whether the People are obliged to inform the defendant when a case which has previously been dismissed is restored to the calendar. The underlying action This court has obtained the minutes of the January 22, 1999 calendar call which indicate that the People had their file in court, that a statement of readiness for trial had already been filed and that the DMV abstract needed to convert the charges of aggravated unlicensed operation of a vehicle had still not been filed. The case was then adjourned to February 24, 1999 for the purpose of the People's filing of the DMV abstract. This court finds that the period from defendant's voluntary return on the warrant on January 22, 1999 to the adjourn date of February 24, 1999 is chargeable to the People. The People are generally entitled to a reasonable adjournment following the defendant's return on a warrant as they cannot realistically be expected to be ready for trial when they have no advance knowledge of the day on which the defendant will actually appear (see, People v Degro, 141 Misc 2d 810 [Crim Ct, NY County 1988]; People v Muhanimac, 181 AD2d 464 [1st Dept 1992]; People v Drummond, 215 AD2d 579 [2d Dept 1995]). In this case, however, the minutes of the January 22, 1999 calendar call indicate that the People in fact had their file (see, People v Alfonso, 174 Misc 2d 76 [Crim Ct, Kings County 1997]). The only impediment to an announcement of readiness for trial on this date was the absence of the DMV abstract. The People's failure to have obtained the DMV abstract was entirely due to their own dereliction, and the People's obligation to convert the complaint to an information is not mitigated when their own actions have caused the defendant's absence. The minutes also reveal that the People had already filed a statement of readiness for trial prior to the defendant's return on the warrant. Even if the charges had been corroborated, the People's statement of readiness would be deemed illusory since it was never communicated to the defendant as required by People v Kendzia (supra). The period from January 22 to February 24, 1999 therefore is chargeable (33 days, for an aggregate total of 92 chargeable days). Accordingly, the People failed to be ready for trial within the 90-day statutory period (see, CPL 30.30 [1] [b]) and the defendant's motion to dismiss the accusatory instrument is granted.