| (Cite as: 173 A.D.2d 745, 570 N.Y.S.2d 246) |
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The PEOPLE, etc., Appellant,
v.
Harold PALACIOS, Respondent.
Supreme Court, Appellate Division,
Second Department.
May 28, 1991.
People appealed from order of the Supreme Court, Queens County, Sherman, J., dismissing indictment on speedy trial grounds. The Supreme Court, Appellate Division, held that period between defendant's arraignment and indictment was not chargeable to People under speedy trial statute, where arraignment date was fixed by court clerk.
Reversed and remitted.
| (Cite as: 173 A.D.2d 745, 570 N.Y.S.2d 246) |
People v. Palacios
KeyCite this headnote
 210 INDICTMENT AND INFORMATION
210II Finding and Filing of Indictment or Presentment
210k7 k. Term of court or time of finding.
N.Y.A.D. 2 Dept.,1991.
Period between defendant's arraignment and indictment was not chargeable to People under speedy trial statute, where arraignment date was fixed by court clerk. McKinney's CPL § 30.30, subd. 1(a).
| (Cite as: 173 A.D.2d 745, 570 N.Y.S.2d 246) |
**246
| (Cite as: 173 A.D.2d 745, 570 N.Y.S.2d 246, **246) |
John J. Santucci, Dist. Atty., Kew Gardens (Andrew Zwerling, of counsel), for appellant.
Addabbo & Greenberg, Forest Hills (Schwartz and DiBlasi [Barry A. Schwartz], of counsel), for respondent.
Before MANGANO, P.J., and BRACKEN, KUNZEMAN and MILLER, JJ.
MEMORANDUM BY THE COURT.
*745
| (Cite as: 173 A.D.2d 745, *745, 570 N.Y.S.2d 246, **246) |
Appeal by the People from an order of the Supreme Court, Queens County (Sherman, J.), dated April 19, 1990, which granted the defendant's motion pursuant to CPL 30.30(1)(a) to dismiss the indictment.
ORDERED that the order is reversed, on the law, and as a matter of discretion in the interest of justice, the motion is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.
In granting the defendant's motion to dismiss the indictment on statutory speedy trial grounds, the Supreme Court found that 196 days were chargeable to the People. Included within the total of 196 days charged to the People, were the last 22 days (i.e., March 8, 1989 through March 30, 1989) of a 36-day period between the defendant's indictment and arraignment on that indictment
| (Cite as: 173 A.D.2d 745, *745, 570 N.Y.S.2d 246, **246) |
(i.e., February 22, 1989 through March 30, 1989). We disagree with the Supreme Court's determination.
It is undisputed that "the court clerk, pursuant to the *746
| (Cite as: 173 A.D.2d 745, *746, 570 N.Y.S.2d 246, **246) |
practice in Queens County, scheduled [the defendant's] arraignment on the indictment" **247
| (Cite as: 173 A.D.2d 745, *746, 570 N.Y.S.2d 246, **247) |
(People v. Lopez, 149 A.D.2d 735, 540 N.Y.S.2d 518). In People v. Rivera, 160 A.D.2d 234, 553 N.Y.S.2d 682, the Appellate Division, First Department, excluded the entire period between indictment and arraignment on the ground that:
"Of those periods in issue herein, we first consider the 22-day period from the filing of the indictment until defendant was arraigned * * *. We hold that as a matter of law the entire 22 days is excludable * * *. In the instant case * * * the delay was visited upon defendant by the court, not the prosecutor, who had no role in calendering the arraignment. Indeed, the court advised defendant when to appear by sending a notice to him. The People should, therefore, not be charged with this delay, which was concededly occasioned by Supreme Court" (People v. Rivera, supra, at 234-235, 553 N.Y.S.2d 682; see also, People v. Khan, 172 A.D.2d 231, 568 N.Y.S.2d 367).
We are aware of the recent Court of Appeals decision in People v. Correa, 77 N.Y.2d 930, 931, 569 N.Y.S.2d 601, 572 N.E.2d 42, wherein the Court of Appeals held that "[d]elays between indictment and the arraignment * * * are * * * not excludable under CPL 30.30". However, People v. Correa
| (Cite as: 173 A.D.2d 745, *746, 570 N.Y.S.2d 246, **247) |
(supra), is distinguishable from the case at bar since it did not involve the situation where the court clerk fixes the arraignment date. Viewed within the particular framework of this case (see, People v. Rivera, supra ), the amount of time properly chargeable to the People was within the allowable six- calendar-month statutory limitation. Accordingly, the defendant's motion is denied and the indictment is reinstated.
END OF DOCUMENT
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