PEOPLE v. LEWIN

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. James LEWIN, Appellant.

Decided: June 24, 2005

PRESENT:  RUDOLPH, P.J., McCABE and COVELLO, JJ. Young & Young, LLP, Central Islip (Patrick F. Young of counsel), for appellant. John J. Leo, Town Attorney, Huntington (Cindy Elan-Mangano of counsel), for respondent.

Appeal by defendant from judgments of the District Court, Suffolk County (S. Hackeling, J.), rendered March 13, 2003, convicting him of 2 counts of violating section 87-25(A) of the Huntington Town Code and 3 counts of violating section 153-5(B) of the Huntington Town Code, and imposing sentences.

Judgments of conviction unanimously affirmed.

 Section 87-45 of the Huntington Town Code provides that a violation of article 87 shall constitute a misdemeanor punishable by a fine of not more than $1,000 or imprisonment not exceeding six (6) months or both.   Violations of article 153 of the code are deemed offenses (Huntington Town Code § 153-18 [A] ).   Thus, the People were required to be ready for trial within 90 days of commencement of the action (CPL 30.30[1][b] ).  Generally, an action commences for speedy trial purposes upon the filing of the first accusatory instrument (see CPL 1.20[16], [17];  100.05;  People v. Stirrup, 91 N.Y.2d 434, 671 N.Y.S.2d 433, 694 N.E.2d 434 [1998];  People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 [1980] ).   For speedy trial purposes an exception to the rule exists with regard to those defendants issued appearance tickets (see CPL 30.30[5] [b] ).  Specifically, CPL 30.30(5)(b) provides that “where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket.”   In such instances, the speedy trial clock begins to run when defendant first appears in court even if the People do not file an accusatory instrument (see People v. Stirrup, 91 N.Y.2d at 438-439, 671 N.Y.S.2d 433, 694 N.E.2d 434;  People v. Parris, 79 N.Y.2d 69, 71, 580 N.Y.S.2d 167, 588 N.E.2d 65 [1992];  People v. Han, 166 Misc.2d 246, 632 N.Y.S.2d 748 [1995] ).

In the case at bar, defendant failed to appear on the return date set forth on the appearance ticket, i.e., September 13, 2001.   Although, the People filed the requisite informations on September 4, 2001, the People's time for speedy trial purposes did not begin to run until February 28, 2002, the date defendant first appeared in court (see CPL 30.30[5][b];  see also People v. Parris, 79 N.Y.2d at 71, 580 N.Y.S.2d 167, 588 N.E.2d 65).   On said date, the People announced their readiness and defendant was arraigned on the informations.   In view of the foregoing, defendant's contention that his CPL 30.30 rights were violated is without merit.

 Defendant's contention that the evidence seized upon execution of the search warrant should be suppressed on the ground that it was obtained in violation of the Aguilar-Spinelli test is also without merit.   The two pronged Aguilar-Spinelli test, i.e., knowledge and veracity, are applicable to probable cause determinations when evaluating hearsay informations from undisclosed informants (People v. Wilkinson, 5 A.D.3d 512, 773 N.Y.S.2d 111 [2004], lv. denied 2 N.Y.3d 809, 781 N.Y.S.2d 308, 814 N.E.2d 480 [2004] ).   Here, the informant, defendant's tenant, provided the People with an affidavit together with a copy of the lease signed by defendant.   The foregoing was submitted together with other documents to the court in support of the application for the search warrant.   Since the court was presented with sufficient probable cause to issue a warrant authorizing a search of the lower level of the premises, the evidence obtained as a result of the search was admissible at trial.

The other issues raised by defendant on this appeal were also fully considered and found to be without merit.