People v. Castro ( 1981 )

Mikoll, J. (dissenting).

I respectfully dissent. This defendant was arraigned on October 28, 1977. His pretrial motions were disposed of by February, 1978. Defendant filed a motion on January 19, 1979, pursuant to CPL 30.30, seeking dismissal of the felony complaint against him for failure of the People to be ready for trial within six months of the commencement of a criminal action wherein he was accused of a felony. The People seek to be excused for the same 353-day period of delay between the time when all pretrial motions of the defendant had been disposed of and the date defendant filed his motion pursuant to CPL 30.30. The People contend that the peculiar calendar problem in Ulster County constituted “exceptional circumstances” referred to in CPL 30.30 (subd 4, par [g]). Defendant urges, on the other hand, that the calendar problems which existed in Ulster County did not constitute “exceptional circumstances”. The Court of Appeals in People v Brothers (50 NY2d 413, 417-418) stated: “While court congestion may prevent a trial, in no sense does it operate to prevent the District Attorney from being ready for trial. Nor does it do to point out that, in the face of known court congestion, it makes little practical sense to require the District Attorney to expend the effort (largely useless for any other purpose) just to enable him conscientiously to report to the court that he is ready for trial. Any futility on that account stems from the form in which the statute was enacted — expressing a command that the People must be ready for trial rather than that the defendant must be granted a trial within the prescribed period.” I conclude that the District Attorney did not demonstrate that he was ready for trial within the prescribed period. It is insufficient, as a matter of law, to inform the court of such a claim for the first time in an affidavit submitted in response to a motion to dismiss the indictment (People v Hamilton, 46 NY2d 932). It was, therefore, error to deny defendant’s motion to dismiss under CPL 30.30. The conclusion reached in the hearing, that the District Attorney had no forum in which to register his readiness, is belied by the presence of the County Judge and other visiting Judges in Ulster County before any one of whom an appropriate application for a calendar call could readily have been made, and the District Attorney’s readiness in this matter noted as required by the law. The judgment should be reversed and the indictment dismissed.