PEOPLE v. CLAYTON

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

The PEOPLE, etc., appellant, v. James CLAYTON, respondent.

Decided: April 24, 2007

HOWARD MILLER, J.P., DAVID S. RITTER, JOSEPH COVELLO, and WILLIAM E. McCARTHY, JJ. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), for appellant. Russo & Gajdos, LLP, Patchogue, N.Y. (Michael A. Gajdos of counsel), for respondent.

Appeal by the People from an order of the County Court, Suffolk County (Braslow, J.), dated January 30, 2006, which granted the defendant's motion to dismiss the indictment pursuant to CPL 30.30(1)(a).

ORDERED that the order is affirmed.

On February 8, 2005, the defendant was arraigned on a felony complaint that had been filed against him the previous day.   At the arraignment, the court dismissed the felony complaint as insufficient and jurisdictionally defective.

More than six months later, an indictment was filed against the defendant which contained the same charges as those underlying the felony complaint.   The defendant moved to dismiss the indictment pursuant to CPL 30.30(1)(a), and the County Court, which found that the defendant had been deprived of his right to a speedy trial, granted the motion and dismissed the indictment.

The six-month period within which the People were required to be ready for trial is to be measured from the date of filing of the felony complaint, and not from the date of filing of the indictment, even when, as here, the complaint was dismissed (see People v. Osgood, 52 N.Y.2d 37, 41-45, 436 N.Y.S.2d 213, 417 N.E.2d 507;  People v. Lomax, 50 N.Y.2d 351, 355-356, 428 N.Y.S.2d 937, 406 N.E.2d 793).   Since the record shows that the People were chargeable with more than six months of delay after the filing of the felony complaint, the County Court correctly granted the motion and dismissed the indictment (see CPL 30.30[1][a] ).

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