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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 42
The People &c.,
            Respondent,
        v.
Diane Wells,
            Appellant.




          Andrew C. Fine, for appellant.
          David M. Cohn, for respondent.




MEMORANDUM:
          The order of the Appellate Term should be reversed and
the order of Criminal Court of the City of New York reinstated.
          In October 2006, defendant was convicted of assault in
the third degree in Criminal Court of the City of New York but,
in March 2010, the Appellate Term reversed the judgment due to an

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improper jury charge, and remanded the case for a new trial (26
Misc 3d 143 [A] [App Term, 1st Dept 2010]).   The People then
sought leave to appeal to this Court.
          On May 10, 2010, while the People's application for
leave to appeal was still pending, Criminal Court adjourned
defendant's case until June 21.   An assistant district attorney
was present at the adjournment.   A Judge of this Court denied the
People's leave application on May 14, 2010 (14 NY3d 894 [2010]).
          Because of a clerical error in Criminal Court,
defendant's case was not placed on the June 21, 2010 calendar,
and no representative of the District Attorney was present in
court on that date.   Once the District Attorney's office
discovered the miscalendaring in July, and informed Criminal
Court, a new calendar date of August 23, 2010 was set.   At no
time prior to that did the People declare themselves ready for
trial.
          On August 23, defendant moved to dismiss the accusatory
instrument on speedy trial grounds, pursuant to CPL 170.30 (1)
(e), arguing that more than 90 days had elapsed since the denial
of leave to appeal to this Court.   Criminal Court granted
defendant's motion to dismiss, concluding after a fact-finding
hearing that "that there was unexplained and unexcused
prosecutorial inaction with this case" that "lasted longer than
the statutory speedy trial time allotted."
          The Appellate Term reversed, holding that the People


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had no obligation to advance the case to an earlier date upon
receiving the certificate denying leave (36 Misc 3d 144 [A] [App
Term, 1st Dept 2012]).   A Judge of this Court granted defendant
leave to appeal.   We now reverse.
          CPL 170.30 (1) is clear.     A motion made pursuant to
that section must be granted if the People are not "ready for
trial within . . . ninety days of the commencement of a criminal
action wherein a defendant is accused of one or more offenses, at
least one of which is a misdemeanor punishable by a sentence of
imprisonment of more than three months and none of which is a
felony" (CPL 30.30 [1] [b]).   When a defendant's judgment of
conviction is reversed and the case is sent back for a retrial,
"the criminal action . . . must be deemed to have commenced on .
. . the date the order occasioning a retrial becomes final" (CPL
30.30 [5] [a]).
          The parties do not dispute that under CPL 30.30 (5) (a)
a new criminal action commenced when a Judge of this Court denied
the People leave to appeal from the Appellate Term's order.     The
People point to the fact that, under the Criminal Procedure Law,
"[i]n computing the time within which the people must be ready
for trial . . . a reasonable period of delay resulting from other
proceedings concerning the defendant, including but not limited
to: . . . appeals; . . . and the period during which such matters
are under consideration by the court" must be excluded (CPL 30.30
[4] [a] [emphasis added]).


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          The People contend therefore that the period from May
10, 2010 to August 23, 2010 is excludable, relying on People v
Vukel (263 AD2d 416 [1st Dept 1999], lv denied 94 NY2d 830
[1999]), which held that when a trial court orders an adjournment
for control purposes because of the pendency of a defendant's
application for leave to appeal to this Court, the entire period
of the adjournment is excludable under CPL 30.30 (4) (a), as time
resulting from the appeal.   In Vukel, the Appellate Division
rejected the argument that the People have "an obligation to
advance the case to an earlier date upon receiving the
certificate denying leave" (id. at 417).
          The mere lapse of time, following the date on which the
order occasioning a retrial becomes final, does not in itself
constitute a reasonable period of delay resulting from an appeal
within the meaning of CPL 30.30 (4) (a).   Otherwise, the People
would be permitted to delay retrial for the duration of an
adjournment in the trial court, no matter how lengthy, even after
a Judge of our Court has denied leave to appeal, without
consequence under CPL 30.30.   Such a rule would be inconsistent
with "the dominant legislative intent informing CPL 30.30,
namely, to discourage prosecutorial inaction" (People v Price, 14
NY3d 61, 64 [2010]).   To the extent Vukel holds otherwise, it
should not be followed.
          Here, the Appellate Term erred as a matter of law in
ruling that the period from May 10, 2010 to August 23, 2010 was


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automatically excludable as time resulting from an appeal under
CPL 30.30 (4) (a).   We agree with Criminal Court that the People
provided no justification on the record for any "reasonable
period of delay" under CPL 30.30 (4) (a) to be added to the 90
days provided under CPL 30.30 (1) (b).
*   *   *   *   *    *   *   *    *      *   *   *   *   *   *   *   *
Order reversed and the order of Criminal Court of the City of New
York reinstated, in a memorandum. Chief Judge Lippman and Judges
Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Decided October 16, 2014




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