This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 176
The People &c.,
            Respondent,
        v.
Samuel Small, Also Known as
Samuel Smalls,
            Appellant.




          David P. Greenberg, for appellant.
          Ann Bordley, for respondent.




PIGOTT, J.:
          Defendant Samuel Small, a/k/a Samuel Smalls was
indicted on March 30, 2006, for various charges arising from a
burglary that occurred January 11, 2005 in Brooklyn.   He was
arrested on April 4, 2006, for a different burglary that occurred
earlier that day.   At arraignment, the People served notice that
they would be presenting the April 4 burglary to the grand jury


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on Monday, April 10, and defendant notified the People that he
wished to testify.
            Sometime between April 4 and April 7, the People
learned that defendant was connected to yet another burglary that
occurred February 23, 2006.    On April 7, they filed a felony
complaint against defendant for that crime and obtained a warrant
for his arrest.    Because defendant was already in custody for the
April 4 burglary, however, he was never formally arrested or
brought before a court on the new charges.    According to
defendant, prison officials merely informed him that he was being
arrested for a different offense.    When defendant appeared in
court on April 10 for the grand jury proceeding, the People
notified him that they would also ask about the February 23
burglary.    Defendant agreed to waive immunity and testify about
both the February and April burglaries.    The grand jury returned
a true bill with respect to both incidents, charging defendant
with two counts of burglary in the second degree (Penal Law
§ 140.25[2]) and other related offenses.
            Defendant unsuccessfully moved on three separate
occasions to dismiss the indictment based on the People's
noncompliance with the arrest warrant, their failure to provide
adequate grand jury notice and their resulting inability to
declare readiness for trial.    After a jury trial on the
consolidated indictments, defendant was found guilty of one count
of burglary in the second degree relative to the January 2005


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burglary and one count of burglary in the second degree relative
to the February 23 burglary.    (He was acquitted of all counts
related to the April 4 burglary.)
           The sentencing court adjudicated defendant a second
violent felony offender based on a 1985 conviction for robbery in
the second degree, concluding that the prior offense occurred
within ten years of defendant's January 2005 burglary, after
excluding intervening periods of time during which defendant was
incarcerated.   Defendant objected, arguing that one of the
periods of incarceration -- 442 days from August 1992 to October
1993 for a parole violation    -- should not have been used to
extend the ten-year limit because a habeas court had ordered his
release from confinement.   In light of the evidence presented at
the parole revocation hearing, the habeas court concluded that
defendant had been unlawfully confined and ordered his immediate
release.
           The sentencing court rejected defendant's argument with
respect to the parole violation, found the 1985 conviction to be
a valid predicate felony and sentenced him to fifteen years in
prison followed by five years of post-release supervision for the
January 2005 burglary.
           The Appellate Division affirmed the judgment of
conviction and sentence (People v Small, 112 AD3d 857 [2d Dept
2013]), and a Judge of this Court granted defendant leave to
appeal (23 NY3d 1067 [2014]).


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          We hold that the courts below properly denied
defendant's motions to dismiss the grand jury indictment for the
February 23 burglary.   But we agree with defendant that he should
not have been sentenced as a second violent felony offender and
therefore modify the order of the Appellate Division by remitting
the case for resentencing.
                                  I.
          Defendant seeks to vacate his conviction for the
February 23 burglary based on two alleged violations of the
Criminal Procedure Law: 1) failure to arraign him "without
unnecessary delay" in violation of CPL 120.90 and 2) failure to
give him notice of a grand jury proceeding in violation of CPL
190.50.
          CPL 120.90 provides that, "[u]pon arresting a defendant
for any offense pursuant to a warrant of arrest . . . a police
officer . . . must without unnecessary delay bring the defendant
before the local criminal court in which such warrant is
returnable" (CPL 120.90[1]).   Defendant claims he was arrested
for the February 23 burglary on Friday, April 7, and that the
failure to arraign him on those charges before Monday, April 10,
constituted unnecessary delay.    The courts below correctly
concluded, however, that the People were not subject to the
"unnecessary delay" requirement of CPL 120.90 because defendant
was not arrested on April 7.   Only police officers may execute an
arrest warrant (see CPL 120.10[1]), and corrections officers are


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peace officers, not police officers (see CPL 1.20[34; 2.10[25]).
Even if we accept defendant's assertions that corrections
officers informed him of his arrest and that they attempted to
arrest him, they could not have legally done so.   Therefore,
section 120.90, by its plain terms, does not apply in this
situation.
          Additionally, the People did not violate section 120.90
by failing to arraign defendant between Friday and Monday.     "No
specific time span is universally considered reasonable or per se
unreasonable" in bringing a defendant before the local criminal
court (Peter Preiser, Practice Commentaries, McKinney's Cons.
Laws of NY, Book 11A, CPL 120.90 at 522 [2004]).   Because
defendant was already detained on another charge, and his arrest
was authorized by a warrant, any prearraignment delay did not
implicate defendant's constitutional rights (see id.
[distinguishing prearraignment delay following a warrantless
arrest from prearraignment delay following an arrest authorized
by a warrant, noting that the latter has already been subject to
a judicial "determination of reasonable cause by a neutral,
detached official"]; cf. People ex rel. Maxian v Brown, 77 NY2d
422, 427 [1991] [finding 24-hour delay unreasonable when it
followed a warrantless arrest]).   Defendant would have been in
custody until April 10 regardless of whether he was arraigned on
the February 23 burglary, as he was scheduled to appear in court
on that date for the grand jury proceeding.   Under these


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circumstances, we cannot say the weekend delay was unreasonable.1
          Defendant also argues that the People violated CPL
190.50(5)(a) by failing to give him notice that they would be
presenting evidence of the February 23 burglary at the April 10
grand jury proceeding.   That provision states that "[w]hen a
criminal charge against a person is being or is about to be or
has been submitted to a grand jury, such person has a right to
appear before such grand jury as a witness in his own behalf"
(CPL 190.50[5][a]).   "The district attorney is not obligated to
inform such a person" about the grand jury proceeding, however,
"unless such person is a defendant who has been arraigned in a
local criminal court upon a currently undisposed of felony
complaint charging an offense which is a subject of the . . .
proceeding" (id. [emphasis added]).    In such a case, "the
district attorney must notify the defendant or his attorney of
the prospective or pending grand jury proceeding and accord the
defendant a reasonable time to exercise his right to appear as a
witness" (id.).   If the People fail to comply with the statute's
notice requirement, the grand jury proceeding is defective and,
upon a motion by the defendant, the resulting indictment must be
dismissed (CPL 190.50[c]; 210.20[1][c]; 210.35[4]).
          Just as the "unnecessary delay" provision in CPL 120.90
does not apply to a defendant who has not yet been arrested, the


     1
       To the extent defendant argues that the police also
violated CPL 120.90(1) by failing to arrest him pursuant to the
warrant, that claim is unpreserved.

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notice requirement in CPL 190.50(5)(a) does not apply to a
defendant who has not yet been arraigned.   The statute's plain
language entitles a person to notice of an upcoming grand jury
proceeding only if he has "been arraigned in a local criminal
court" on the offense to be presented (id.).   Because defendant
had not yet been arraigned on the felony complaint for the
February 23 burglary, the People were not statutorily required to
notify him that they would also be presenting on those charges.2
                               II.
          Defendant further contends that he should not have been
sentenced as a second violent felony offender for the January
2005 burglary because his 1985 conviction for second-degree
robbery occurred more than ten years earlier, and the intervening
periods of incarceration did not close the gap.
          A defendant who stands convicted of a violent felony
may be adjudicated a second violent felony offender if he was
previously convicted of a violent felony within ten years of the
current offense (see Penal Law § 70.04[1][b][iv]).   "[A]ny period
of time during which the person was incarcerated for any reason
between the time of commission of the previous felony and the
time of commission of the present felony" is excluded from the
ten-year calculation (Penal Law § 70.04[1][b][v]).
          Central to this appeal is the language "for any



     2
        In light of this conclusion, we have no need to consider
defendant's CPL 30.30 claim.

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reason."    The legislative history "is silent" on the meaning of
that phrase (People v Love, 71 NY2d 711, 716 [1988]), but we have
construed it to mean that a period of incarceration will not be
excluded if it was "without reason" or "patently unjustified"
(People v Dozier, 78 NY2d 242, 249 [1991], quoting Love, 71 NY2d
at 716).    Thus, in Dozier we found that a period of incarceration
should not have been excluded where it was based on a conviction
that was subsequently overturned due to newly discovered
evidence.    We reasoned that extending the ten-year limitation on
prior violent felonies "for an unjustified period of
incarceration resulting from a flawed conviction," would amount
to an absurd, unreasonable or unjust construction of the Penal
Law (id.).
            Although the habeas court did not vacate defendant's
conviction for a parole violation, it did grant his immediate
release from confinement after determining that "the evidence did
not support" defendant's incarceration.    A person "illegally
imprisoned or otherwise restrained in his liberty . . . may
petition without notice for a writ of habeas corpus to inquire
into the cause of such detention and for deliverance"
(CPLR 7002[a]).    If a judge considering the habeas petition
determines that a person has been unlawfully detained, he "shall
. . . issue a writ of habeas corpus for the relief of that
person" (id.).    That the habeas court in this case granted
defendant's immediate release based on a lack of evidence


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indicates that defendant was "imprisoned without reason" from
1992-1993.   We decline to read section 70.04(1)(b)(v), or our
decisions in Dozier and Love, to include only those periods of
incarceration that are based on subsequently invalidated or
vacated convictions (see Dozier, 78 NY2d at 249 [rejecting a
strict, literal reading of section 70.04[1][b][v]).       Where, as
here, a period of incarceration has been deemed unlawful and
unsupported by evidence, it should not be used to extend the ten-
year limitation on prior violent felony convictions.
            Accordingly, the order of the Appellate Division should
be modified by remitting the case to Supreme Court for
resentencing in accordance with this opinion and, as so modified,
affirmed.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order modified by remitting the case to Supreme Court, Kings
County, for resentencing in accordance with the opinion herein
and, as so modified, affirmed. Opinion by Judge Pigott. Chief
Judge Lippman and Judges Rivera, Abdus-Salaam, Stein and Fahey
concur.

Decided November 19, 2015




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