The defendant was charged with driving while intoxicated on April 10, 1983 and was ordered to return to court on May 12, 1983. The defendant failed to appear on the specified date and a bench warrant was issued for his arrest after a felony complaint was filed charging the defendant with two counts of operating a vehicle under the influence of alcohol DWI, committed on April 9, 1983. The defendant appeared in court on May 17, 1983 where the matter was adjourned to June 3, 1983 in order for him to have legal representation. On June 3, 1983 the matter was again adjourned, the request of the defendant’s attorney in order for the attorney retained to become familiar with case until June 30, 1983. The matter was further adjourned to August 31, 1983 by the Court because the defendant’s Queens County Criminal Attorney was getting married.
On August 31, 1983, the matter appeared on the Criminal Court Calendar where the matter was adjourned to October 14, 1983 with consent by both the defense and the prosecution. The trial date of October 14, 1983 was set to be final date where the matter would be brought before a grand jury or there would be a dismissal of the case against the defendant. On October 14, 1983 the prosecution indicated that the case was not ready and as such the case was dismissed. However, on January 6, 1984 the defendant was indicted for two counts of operating a vehicle under the influence of alcohol DWAI committed on April 9, 1983. The defendant filed a motion to dismiss the case on the ground that he was denied a speedy trial (Criminal Procedure Law 30:30) because he defendant was indicted after the six months period had elapsed. No drug of any kind was found.
The trial was to commence on May 17, 1983 when the defendant appeared in court after the bench warrant for his arrest was issued. However, there was a delay of almost eight months when the indictment was filed on January 6, 1984. The People could not be considered ready for trial until the indictment was filed. The CPL 30.30 subsection 4 paragraph B excludes periods of delay at the request of the defendant or his counsel or with consent of defense counsel. The period of adjournment at request of defendant or his attorney between filing of accusatory and prosecutorial instruments was not subject to being excluded from computation of time within which the People must be ready for trial under the speedy trial rule unless it resulted in a delay to the prosecution. The two-month period of adjournment which was granted to trial counsel following the defendant’s appearance on the complaint so as to allow the defense counsel to get married was not an impediment to the People in obtaining an indictment. Hence, the two month adjournment was not subjected to being excluded from the computation of time within which the People were required to be ready for trial. A dismissal of the matter was required when the indictment was not filed within six months required by speedy trial rule. The period in which the People requested an adjournment was not excludable period since it was not requesting the defendant or his counsel. The period in which the case was dismissed to when the indictment was filed is also not an excluded period. The statutory obligation to be ready for trial within six months after commencing a felony action was not postpone with the dismissal of the case. As a result, the defendant’s motion to dismiss the case pursuant to the CPL 30:30 on the ground he was denied a speedy trial was granted.
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