PEOPLE v. LYNCH

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The PEOPLE, etc., appellant, v. Rickey LYNCH, respondent.

Decided: February 27, 2013

WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Judith R. Sternberg and Sarah S. Rabinowitz of counsel), for appellant. Andrew E. MacAskill, Westbury, N.Y., for respondent.

Appeals by the People (1) from an order of the County Court, Nassau County (Berkowitz, J.), dated August 26, 2011, which granted the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial, and (2), as limited by their brief, from so much of an order of the same court dated March 27, 2012, as, upon reargument, adhered to the original determination.

ORDERED that the appeal from the order dated August 26, 2011, is dismissed, as that order was superseded by the order dated March 27, 2012, made upon reargument; and it is further,

ORDERED that the order dated March 27, 2012, is reversed insofar as appealed from, on the law, upon reargument, the order dated August 26, 2011, is vacated, the defendant's motion pursuant to CPL 30.30 to dismiss the indictment is denied, the indictment is reinstated, and the matter is remitted to the County Court, Nassau County, for further proceedings consistent herewith.

When a defendant stands accused of a felony, the indictment must be dismissed unless the People are ready for trial within six months after the commencement of the criminal action (see CPL 30.30[1][a]; People v. Sinanaj, 291 A.D.2d 513, 739 N.Y.S.2d 392). “Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute” (People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71).

The record does not support a finding that the People's statement of readiness was illusory or otherwise ineffective, negating excludable periods of delay (see People v. Cole, 24 A.D.3d 1021, 1023–1024, 807 N.Y.S.2d 166; People v. Rodriguez, 306 A.D.2d 686, 687, 761 N.Y.S.2d 368; see also People v. Fulmer, 87 A.D.3d 1385, 929 N.Y.S.2d 897).

With respect to periods of delay that occur following the People's statement of readiness, only those delays which are attributable to the inaction of the People and directly implicate their ability to proceed with trial are charged against them (see People v. Carter, 91 N.Y.2d 795, 799, 676 N.Y.S.2d 523, 699 N.E.2d 35; People v. Cortes, 80 N.Y.2d at 210, 590 N.Y.S.2d 9, 604 N.E.2d 71), and any period of an adjournment in excess of that actually requested by the People is excluded (see People v. Nielsen, 306 A.D.2d 500, 501, 761 N.Y.S.2d 316; People v. McNeil, 222 A.D.2d 612, 635 N.Y.S.2d 291). Here, the total time chargeable to the People was less than the six-month period of time provided by CPL 30.30(1)(a). Accordingly, the Supreme Court erred in granting the defendant's motion pursuant to CPL 30.30 to dismiss the indictment.

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