Opinion
November 10, 1994
Appeal from the Supreme Court, New York County, James Leff, J., Frederic Berman, J.
The speedy trial period began on September 23, 1991, when the felony complaint was filed (People v. Sinistaj, 67 N.Y.2d 236, 239), not at the time of defendant's arrest four days earlier, and such four-day period should not be charged to the People notwithstanding that they incorrectly conceded the period on the motion (see, e.g., People v. Marshall, 91 A.D.2d 900, 901). Although the five-day period during which the People failed to produce defendant while in their custody is chargeable to the People (see, People v. Anderson, 66 N.Y.2d 529, 538), the time periods during which defendant voluntarily absented himself from court for medical and religious reasons are not (CPL 30.30 [c]; People v. Toro, 151 A.D.2d 142, 143-144, lv dismissed 75 N.Y.2d 818). The extensive time period during which the prosecution's witness underwent surgery and recuperation is also excludable (CPL 30.30 [g]; People v. Pomales, 159 A.D.2d 451, 452, lv denied 76 N.Y.2d 847).
Defense counsel's assertion on September 16, when the People announced their readiness, that he would be filing a CPL 30.30 motion prompted an adjournment for defense motions that was properly excludable despite counsel's subsequent notice to the prosecutor, but not the court, that he would not be filing the motion, until the People were in fact ready. The fact that the assigned prosecutor was on trial on September 16, and not prepared to try the case himself did not render his announcement of readiness ineffective since another prosecutor could have tried the case. However, the period between September 30 and October 8 should have been charged to the People since by this time they knew that the defense would not be filing a motion and that they did not, therefore, have to file a response. In sum, a total of 163 days were chargeable to the People, and thus defendant's motion was properly denied.
Concur — Rosenberger, J.P., Kupferman, Asch and Tom, JJ.