Opinion
2003-280 D CR.
Decided October 16, 2003.
Appeal by the People, as limited by their brief, from so much of an order of the Justice Court, Town of Fishkill, Dutchess County (W. Biersack, J.), dated November 7, 2002, as granted defendant's motion pursuant to CPL 30.30 (1) (b) to dismiss the accusatory instruments on speedy trial grounds.
PRESENT: DOYLE, P.J.; RUDOLPH and SKELOS, JJ.
Order insofar as appealed from unanimously reversed on the law and matter remanded to the lower court for a hearing consistent with the decision herein.
Defendant was initially charged on September 4, 2001 with three class A misdemeanors and a violation. On September 18, 2001, the People filed a felony complaint charging defendant with a felony arising out of the identical incident. Sometime thereafter, the People reduced the felony charge to a class A misdemeanor. Upon this appeal, the People maintain, and defendant does not controvert, that they declared readiness on March 21, 2002. On August 5, 2002, defendant moved to dismiss the accusatory instruments pursuant to CPL 30.30. The court below, attempting to apply the rationale of People v. Cooper ( 90 NY2d 292, 294), held that inasmuch as the most serious offense defendant was ultimately charged with was a class A misdemeanor, the People had to declare their readiness for trial within 90 days of the commencement of the criminal action and that they failed to do so ( see CPL 30.30 [b]). The sole issue raised on this appeal is whether the six-month period, as opposed to the 90-day period, was the time frame within which it was incumbent upon the People to declare their readiness for trial ( see CPL 30.30).
The Court of Appeals held in People v. Cooper ( 98 NY2d 541) that unless an event occurs which triggers the specific contingencies of CPL 30.30 (5) (c), which did not occur in the instant case, the applicable time period for CPL 30.30 purposes is contained in CPL 30.30 (1). The Court stated that the determinative factor in deciding which time period is applicable under CPL 30.30 (1) is not the most serious offense for which the defendant is ultimately prosecuted, but the most serious offense with which defendant was charged, from the date of the filing of the first accusatory instrument ( Id. at 546; see also People v. Sanasie, 238 AD2d 186). In light of the foregoing, the People in the case at bar had six months from September 4, 2001 within which to declare their readiness for trial.
Since there were no minutes taken of any of the subject court appearances, after reviewing the arguments of both the People and defendant with regard to the adjournments, we find that the record does not provide "conclusive proof of sufficient [includable] periods" to warrant the granting of defendant's motion to dismiss and, as such, the matter must be remanded to the lower court for a hearing to determine which, if any, of the contested adjournments are chargeable to the People ( see People v. Jenkins, 104 AD2d 563).