People v. Bendter

The 34-day adjournment from February 9 to March 14, 2000 for defendant's speedy trial motion is excludable. (CPL 30.30 [4] [a], [b].) The 22-day period from March 14 until April 5, 2000 is excludable as a period during which defendant's motion was under consideration by the court. (CPL 30.30 [4] [a], [b].) In sum, as of this date, the People have reached the 90th chargeable day. The People have the full 90-day period in which to be ready. Accordingly, defendant's motion to dismiss is granted unless, by close of business this date, the People serve and file the necessary documents. [1] On the date in question, the complainant allegedly observed the defendant stand outside her home and then run after her into her building where he kicked and hit her apartment door, rang her doorbell and stated that he just wanted to see his kids. [2] The entire decision in People v Arut (supra) stated: "Since the order of protection annexed to the original accusatory instrument was uncertified and not rendered admissible by any other authorized method, it is not prima facie evidence (CPLR 4540; 4543). The instrument is therefore jurisdictionally defective as an information and could not be superseded by a prosecutor's information (CPL 100.15 [3], 100.50 [2] [3]; see, People v Jean-Mary, NYLJ March 15, 1995; [App Term 9th & 10th Jud Dists]; see also, People v Alejandro, 70 NY2d 133)." [3] Although the order submitted by the People on November 30, 1999 contains the necessary certification, the order itself is not the one defendant allegedly violated. The order underlying the present charge was in force from September 15, 1998 to September 14, 1999. The certified order filed by the prosecution relates to an ex parte, temporary order of protection issued by the Family Court, Kings County, on November 17, 1999, subsequent to the crime alleged in the instant complaint. [4] At the time the defendant was arraigned, CPL 710.30 (1) (a) notice was served and filed. The notice indicates that the defendant stated to the "A/O" (arresting officer) at the time of arrest, "I thought the order of protection was expired." The People cannot rely upon this statement to establish defendant's knowledge of the order, absent amendment of the complaint to reflect that the statement was made to the officer, and a supporting deposition submitted by the officer. [5] The marking by the Judge then presiding deemed this 42-day period excludable as an exceptional circumstance, pursuant to CPL 30.30 (4) (g) (i). The basis for the exclusion was the complainant's late-term pregnancy (two weeks to due date) and her homebound condition. However, this exclusion was apparently predicated on the mistaken belief that the People had converted the instrument to an information. Insofar as the complaint was never converted to an information, it remained jurisdictionally defective, and the exceptional circumstance described by the People was irrelevant with respect towards curing this defect.