Opinion
June 7, 1993
Appeal from the Supreme Court, Queens County (Flaherty, J.).
Ordered that the judgment is reversed, on the law, the defendant's speedy trial motion is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
We agree with the defendant that the Supreme Court should have granted his motion to dismiss the indictment on speedy trial grounds (see, CPL 30.30). As the People concede, the 41-day period between the filing of the indictment and the defendant's arraignment on the indictment is chargeable to the prosecution and should not have been excluded by the court (see, People v Correa, 77 N.Y.2d 930, 931). The court charged the People with a 23-day period during which the prosecution was preparing its response to the motion to dismiss pursuant to CPL 30.30. Even if the first 13 of these days are excludable (see, People v Anderson, 66 N.Y.2d 529, 536-538; People v. Evans, 99 A.D.2d 535; cf., People v. McKenna, 76 N.Y.2d 59, 62-66), the last 10 days of that 23 day period should be charged to the People because the People did not respond to the motion until 10 days after the court-ordered deadline. Nor did they even appear on the deadline date to request a further adjournment of the motion. Further, they waited 17 days to order the minutes of several court appearances in the face of a motion to dismiss under CPL 30.30. The adjusted total period of delay that is attributable to the People is 186 days — 5 days beyond the 181-day limitation applicable in this case (see, People v. McKenna, 76 N.Y.2d 59, 63-64, supra; CPL 30.30 [a]). Balletta, J.P., Rosenblatt, Miller and Joy, JJ., concur.