People appealed from order of the County Court, Nassau County, Boklan, J., which granted defendant's motion to dismiss indictment. The Supreme Court, Appellate Division, held that defendant's absence from State since he moved to residence outside State was continuous, and thus tolled statute of limitations on non-class-A felony charges against him, even though he had occasionally visited State for family or business reasons since moving.
Reversed, and indictment reinstated.

People v. Knobel
KeyCite this headnote

110 CRIMINAL LAW
110X Limitation of Prosecutions
110k151 Exceptions and Suspension

110k152 k. Absence, nonresidence, or concealment of accused.
N.Y.A.D. 2 Dept.,1999.
Defendant's absence from state after he moved out of state was continuous, and thus operated to toll statute of limitations on non-class-A felony charges against him, even though defendant had, since moving, made numerous visits to state to visit family and for business, where visits were brief and sporadic and defendant returned to his home outside state after each visit. McKinney's CPL ¤ 30.10, subd. 4.

Denis Dillon, District Attorney, Mineola, N.Y. (Peter A. Weinstein and Robert A. Schwartz of counsel), for appellant.
Todd Greenberg, Kew Gardens, N.Y. (Spiros A. Tsimbinos of counsel), for respondent.

SONDRA MILLER, J.P., WILLIAM C. THOMPSON, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ.


MEMORANDUM BY THE COURT.
Appeal by the People from an order of the County Court, Nassau County (Boklan, J.), dated August 20, 1998, which granted the defendant's motion to dismiss the indictment.
ORDERED that the order is reversed, on the law, and the indictment is reinstated.
Contrary to the defendant's contentions, the toll of the Statute of Limitations set forth in CPL 30.10(4) is applicable under the circumstances presented. CPL 30.10(2)(b) provides that the prosecution for a non-class-A felony must be commenced within five years after the commission of the offense. However, in calculating the time limitation applicable to the commencement of a criminal action, "[a]ny period following the commission of

the offense during which * * * the defendant was continuously outside the state" is excluded (CPL 30.10[4][a][i] ).
Here, the two non-class-A felony counts of the indictment allege that the underlying incidents took place on July 4, 1988. The defendant was indicted on February 24, 1998. However, the defendant stated in his affidavit that he moved out of New York in late December 1991 and continues to reside outside New York. Notwithstanding the defendant's statements that he returned to New York on numerous occasions to visit his family and for business reasons, his visits to New York were brief and sporadic and he returned to his home outside New York after each visit. Thus, his absence from New York was continuous within the meaning of CPL 30.10(4)(a)(i), and the Statute of Limitations was tolled in December 1991 (see, CPL 30.10[4][a][i]; People v. Hedges, 249 A.D.2d 562, 672 N.Y.S.2d 137). Excluding from the calculation the period of time from December 1991 to February 24, 1998, it is clear that the action was commenced well within the Statute of Limitations.
END OF DOCUMENT