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Right To A Speedy “Re-Trial”: Calculating Speedy Trial Time On Remand From An Appellate Court


criminal appeals attorney, speedy trial grounds, readiness, remand, cpl 30.30

People v. Wells

NY Slip Op 07012

New York Court of Appeals

Decided on: October 16, 2014

Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer

CPL 30.30 and Reasonable Periods Of Delay

Issue: Whether Defendant’s speedy trial rights were violated when, on remand from the Court of Appeals, the case was re-calendared and the Prosecution did not announce readiness for trial within 90 days as required by CPL 30.30.

Summary: Defendant was convicted of assault in the third degree. The Appellate Term reversed the judgment due to an improper jury charge and remanded the case for a new trial. The People sought leave to appeal to the Court of Appeals. Criminal Court adjourned Defendant’s case and the Court of Appeals denied the People’s leave application.

On remand from the Court of Appeals, the case was re-calendared and the People did not announce readiness for trial. Defendant moved to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL 170.30(1)(e), arguing that more than 90 days had elapsed since the denial of leave to appeal to the Court of Appeals.

Criminal Court granted Defendant’s motion to dismiss. The Appellate Term reversed, holding that the People had no obligation to advance the case to an earlier date upon receiving the certificate denying leave. The Court of Appeals granted Defendant leave to appeal, and reversed the Appellate Term’s order stating that the Appellate Term erred in holding that the delay was automatically excludable as time resulting from an appeal.

See Also: Knowing Criminal Possession: A Defendant Must  Be Within Close Proximity To Assume The Presumption Under Penal Law § 220.25(2) 

Holding: The Court of Appeals held that the Prosecution erred under CPL 170.30(1), which states that a motion made pursuant to that section must be granted if the People are not ready for trial within ninety days of the commencement of a criminal action.

The Court of Appeals held mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30(4)a).

Facts: Defendant was convicted of Assault. The Appellate Term reversed the judgment due to an improper jury charge, and remanded the case for a new trial. The People then sought leave to appeal to the Court of Appeals. Criminal Court adjourned Defendant’s case and the Court of Appeals denied the People’s leave application.

Because of a clerical error in Criminal Court, Defendant’s case was not placed on the calendar, and no representative of the District Attorney was present in court on that date. Once the District Attorney’s office discovered the mis-calendaring, and informed Criminal Court, a new calendar date was set. At no time prior to the People declare themselves ready for trial.

Defendant moved to dismiss the accusatory instrument on speedy trial grounds, pursuant to CPL 170.30(1)(e), arguing that more than 90 days had elapsed since the denial of leave to appeal to the Court of Appeals. Criminal Court granted Defendant’s motion to dismiss, concluding after fact-finding hearing that there was unexplained and unexcused prosecutorial inaction with this case that lasted longer than the statutory speedy trial time allotted.

The Appellate Term reversed, holding that the People had no obligation to advance the case to an earlier date upon receiving the certificate denying leave. The Court of Appeals granted Defendant leave to appeal, and reversed the Appellate Term’s order.

Legal Analysis: The Court of Appeals held that the Appellate Term erred as a matter of law in ruling that the period from May 10, 2010 to August 23, 2010 was automatically excludable as time resulting from an appeal under CPL 30.30 (4)(a). The Court held that they agree with Criminal Court that the People provided no justification on the record for any reasonable period of delay under CPL 30.30(4)(a) to be added to the 90 days provided under CPL 30.30(1)(b).

The Court of Appeals held that CPL 170.30(1) is clear, a motion made pursuant to that section must be granted if the People are not ready for trial within ninety days of the commencement of a criminal action, wherein a Defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which if a felony. When a Defendant’s judgment is reversed, and the case is sent back for a retrial, the criminal action must be deemed to have commenced on the date the order occasioning a retrial becomes final. CPL 30.30 (5)(a)

Here, the parties do not dispute that under CPL 30.30 (5)(a) a new criminal action commenced when a Judge from the Court of Appeals denied the People leave to appeal from the Appellate Term’s order.

The People point to the fact that, under the Criminal Procedure Law, in computing the time within which the People must be ready for trial, a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: appeals, and the period during which such matters are under consideration by the court, must be excluded.

The People relied on People v. Vukel 263 AD2d 416 1st Dept. 1999, which held that when a trial court orders an adjournment for control purposes because of the pendency of a Defendant’s application for leave to appeal to the Court of Appeals, the entire period of adjournment is excludable under CPL 30.30 (4)(a), as time resulting rom the appeal.

In Vukel, the Appellate Division rejected the argument that the People have an obligation to advance the case to an earlier date upon receiving the certificate denying leave.

The Court of Appeals held that the mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30(4)(a). Otherwise, the People would be permitted to delay retrial for the duration of an adjournment in the trial court, no matter how lengthy, even after a Judge of the Court of Appeals has denied leave to appeal, without consequence under CPL 30.30. The Court of Appeals held that such a rule would be inconsistent with the dominant legislative intent informing CPL 30.30 namely, to discourage prosecutorial inaction. People v. Price, 14 NY3d 61 2010. To the extent Vukel holds otherwise, the Court of Appeals held that it should not be followed.

Accordingly, the Court of Appeals reversed the Appellate Term’s order and reinstated the order of Criminal Court.


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