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People appealed from an order of the Supreme Court, Queens County, Dubin, J., which granted defendant's motion to dismiss the indictment for failure to comply with speedy trial provisions. The Supreme Court, Appellate Division, held that the period of ten and one-half months between filing of a felony complaint and defendant's production in the county was properly not excluded from the six-month period during which People were required to be ready for trial where People were aware of defendant's whereabouts in incarceration in another county at least from the date arrest warrant was lodged as a detainer in such county, yet no evidence was offered that any effort had been made to obtain the presence of defendant for prosecution other than fact that the warrant had been lodged as a detainer.

Affirmed.

People v. Melendez
KeyCite this headnote

110 CRIMINAL LAW
110XVIII Time of Trial
110XVIII(B) Decisions Subsequent to 1966
110k577.11 Status of Persons Affecting Trial Time

110k577.11(5) k. Intrastate detainers; demand and procedure.
N.Y.A.D.,1983.
Period of ten and one-half months between filing of felony complaint against defendant and his production in county was properly not excluded from six-month period during which People were required to be ready for trial where People were aware of defendant's whereabouts at least from date arrest warrant was lodged as a detainer in county in which defendant was incarcerated, yet no evidence was offered that any effort had been made to obtain presence of defendant for prosecution other than fact that warrant had been lodged as a detainer. McKinney's CPL § 30.30, subds. 1(a), 4(e).

John J. Santucci, Dist. Atty., Kew Gardens (Thelma Lee, Kew Gardens, of counsel, Jane Taylor on the brief), for appellant.
Todd Greenberg, Kew Gardens (Spiros A. Tsimbinos, Kew Gardens, of counsel), for respondent.

Before LAZER, J.P., and GULOTTA, BROWN and BOYERS, JJ.


MEMORANDUM BY THE COURT.
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Appeal by the People from an order of the Supreme Court, Queens County, dated June 8, 1981, which, without a hearing, granted defendant's motion to dismiss the indictment for failure to comply with the speedy trial provisions of CPL 30.30.
Order affirmed.
Defendant allegedly robbed and attempted to murder three persons in Queens County on March 31, 1980. The following day he was arrested and incarcerated in Rensselaer County on an unrelated weapons charge. On April 4, 1980 a felony complaint was sworn to in Queens County and an arrest warrant was issued. The warrant was lodged as a detainer in Rensselaer County on April 7, 1980. On February 20, 1981 defendant was removed from Rensselaer County on the basis of the detainer and was produced the next day in Queens County.

Concededly, the People were aware of defendant's whereabouts at least from April 7, 1980, the date the warrant was lodged as a detainer. Yet no evidence was offered that any effort had been made to obtain the presence of defendant for prosecution in Queens County, other than the fact that an arrest warrant had been lodged as a detainer in Rensselaer County some 10 1/2 months prior to defendant's production in Queens County. It is settled that the mere filing of a detainer does not satisfy the statutory speedy trial requirement that the District Attorney must be "diligent" and make "reasonable efforts to obtain the presence of the defendant for trial" (see CPL 30.30, subd. 4, par. [e]; People v. McLaurin, 38 N.Y.2d 123, 378 N.Y.S.2d 692, 341 N.E.2d 250; People v. Winfrey, 20 N.Y.2d 138, 281 N.Y.S.2d 823, 228 N.E.2d 808). Accordingly, Criminal Term was correct in refusing to exclude the 10 1/2 -month period between the filing of the felony complaint and the defendant's production in Queens County from the 6-month period during which the People were *905

required to be ready for trial (CPL 30.30, subd. 1, par. [a] ).
Finally, it should be noted that since the People failed to controvert the factual basis for the motion, there was no need to conduct a hearing (see CPL 210.45, subd. [4]; People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704, 366 N.E.2d 794; see, also, People v. Lomax, 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793).
While the consequences of the People's error here are unfortunate, it is