People v. Friscia , 422 N.Y.S.2d 538 ( 1979 )

Mikoll, J.,

dissents and votes to dismiss in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. This matter was before us previously. On remand, the trial court was directed to make a record as to the exact period of delay occasioned by the plea bargaining arrangement made between the District Attorney and the defendant for defendant’s cooperation in supplying police with information. The agreement was set forth in a letter written by the District Attorney to defense counsel, dated May 10, 1977, and it is from this date that the excludable period for prosecution of the action commenced. The record indicates that the police ceased attempts to get information from defendant pursuant to the arrangement as of August 1, 1977. The People’s contention that the police efforts to communicate with the defendant after that day were frustrated by his change of phone number is impossible to accept absent proof in the record of a fact easily verifiable. The People have the burden of proof when a lack of speedy trial issue is raised by the defendant pursuant to CPL 30.30. Police disinterest in pursuing defendant’s preferred help as is demonstrated by this record cannot extend the mandate of CPL 30.30 (subd 1, par [a]), which required that a felony be prosecuted within six months of the inception of the criminal proceeding. The last communication with this defendant occurred in July, 1977. The police permitted the matter to drift without any action on their part until December 8, 1977, when the matter was reinstated for trial. The six-month period to bring this matter to trial was exceeded and the indictment should, therefore, be dismissed.