Opinion
November 2, 1992
Appeal from the Supreme Court, Kings County (George, J.).
Ordered that the judgment is affirmed.
On April 29, 1988, a felony complaint was filed, and on May 23, 1988, the defendant was arraigned on an indictment charging him with criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree. On July 18, 1988, and again on September 15, 1988, the People announced their readiness for trial. On December 2, 1988, the Supreme Court dismissed the indictment pursuant to People v Cade ( 140 A.D.2d 99, adhered to on rearg 145 A.D.2d 565, subsequently revd 74 N.Y.2d 410), and authorized the People to resubmit the case to the Grand Jury. On January 17, 1989, the defendant was arraigned on the second indictment. In March 1989, the defendant moved, inter alia, to dismiss the second indictment pursuant to CPL 30.30, on the ground that the People violated his statutory right to a speedy trial, which the court subsequently summarily denied.
The trial court acted within the scope of its discretionary authority when it summarily denied the defendant's motion and directed the parties to proceed to trial (see, CPL 210.45 ). It is well settled that for the purpose of computing the six-month time period within which the People must be ready for trial, an indictment which replaces an earlier one relates back to the original accusatory instrument (People v Osgood, 52 N.Y.2d 37; People v Lomax, 50 N.Y.2d 351). Furthermore, the period between the filing of the complaint and the filing of the second indictment is not automatically chargeable to the People (People v Cortes, 80 N.Y.2d 201; People v Sinistaj, 67 N.Y.2d 236, 240; People v Kanter, 173 A.D.2d 560, 561; People v Bantum, 133 A.D.2d 699). After subtracting the period of delay occasioned by adjournments requested by or consented to by the defense (see, CPL 30.30 [b]; People v Liotta, 79 N.Y.2d 841, 843; People v Meierdiercks, 68 N.Y.2d 613, 615), delay resulting from the failure of the defendant to appear (see, CPL 30.30 [c]; People v Bolden, 174 A.D.2d 111, 115; People v Seabrook, 126 A.D.2d 583, 584), and delay directly attributable to the defendant's pretrial motions (see, CPL 30.30 [a]; People v Worley, 66 N.Y.2d 523; People v Varela, 164 A.D.2d 924), the total time chargeable to the People is within the permitted six-calendar-month statutory time limit (see, CPL 30.30 [a]).
We find that the sentence imposed was neither harsh nor excessive (see, People v Suitte, 90 A.D.2d 80). The defendant's remaining contentions are either unpreserved for appellate review or without merit. Thompson, J.P., Lawrence, Eiber and O'Brien, JJ., concur.