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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Appellant, v. Allen WOMACK, Defendant-Respondent.

Decided: July 22, 1999

SULLIVAN, J.P., WILLIAMS, MAZZARELLI, WALLACH and RUBIN, JJ. Morrie I. Kleinbart, for Appellant. Lawrence T. Hausman, for Defendant-Respondent.

Order, Supreme Court, New York County (Michael Obus, J.), entered on or about February 25, 1998, which granted defendant's motion to dismiss the indictment pursuant to CPL 30.30, unanimously affirmed.

The court properly found that, in addition to the 166 days of includable time conceded by the People on defendant's original speedy trial motion, the People are chargeable with at least four months of the eight-month period from May 2, 1995 to January 19, 1996.   While much of the delay following the initial, erroneous dismissal of the indictment on speedy trial grounds (229 A.D.2d 304, 645 N.Y.S.2d 16, affd. 90 N.Y.2d 974, 665 N.Y.S.2d 952, 688 N.E.2d 1034) can be attributed, at least in part, to actions by various courts, the above-cited period of delay was solely attributable to the People's inaction at a time when they had the opportunity to reinstate their dismissed appeal.   We find this period to be an unreasonable period of appellate delay (see, CPL 30.30[4][a];  People v. Cortes, 80 N.Y.2d 201, 211-212, 590 N.Y.S.2d 9, 604 N.E.2d 71), which, when added to the concededly includable time, requires dismissal of the indictment.   Contrary to the People's argument, the reasonableness, for CPL 30.30(4)(a) purposes, of the period of appellate delay in question has not been ruled upon by this Court in prior motion practice (see, People v. Grafton, 73 N.Y.2d 779, 536 N.Y.S.2d 738, 533 N.E.2d 668).   We have considered and rejected the People's remaining claims concerning this time period.


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