People v. Gaggi , 478 N.Y.S.2d 732 ( 1984 )

— Appeal by the People from an order of the Supreme Court, Kings County (Coffinas, J.), dated February 7, 1983, which granted that branch of defendant’s motion which sought to dismiss two indictments for failure to afford him a speedy trial in accordance with CPL 30.30.

Order reversed, on the law and the facts, that branch of defendant’s motion which was to dismiss the indictments for failure to afford him a speedy trial denied, and matter remitted to the Supreme Court, Kings County, for determination of the remaining branches of defendant’s motion and for further proceedings on the indictments.

Defendant was convicted of criminal possession of a weapon in the second degree, and attempted assault in the first degree as a lesser included offense of attempted murder in the first degree. We affirmed the judgment of conviction (People v Gaggi, 80 AD2d 860) and leave to appeal to the Court of Appeals was denied (People v Gaggi, 53 NY2d 842).

Subsequently, the defendant made a motion to set aside the conviction upon the ground of juror misconduct. By order entered May 20, 1982, that motion was granted. Although the People filed a notice of appeal from that order, following some intermediate activity, they advised Criminal Term, on August 16, 1982, that the appeal would not be perfected and that, as required by relevant decisional law (see People v Gonzalez, 61 NY2d 633), they would re-present the case to the Grand Jury. A motion to dismiss the indictments for failure to comply with the speedy trial provisions of CPL 30.30 and for other relief was made on or about December 20,1982. On February 7,1983, the branch of the motion which was to dismiss for failure to afford defendant a speedy trial was granted. We reverse.

Pursuant to CPL 30.30 (subd 1, par [a]; subd 4), the People must announce their readiness for trial within six months of the commencement of a criminal proceeding charging the defendant with a felony, less certain excludable periods (see, e.g., People v Smith, 97 AD2d 485). Because defendant was to be retried upon “an order for a new trial”, the statutory period “must be deemed to have commenced on * * * the date the order occasioning a retrial became final” (CPL 30.30, subd 5, par [a]). While our concurring colleague concludes that the statutory period would not begin to run until the People had exhausted their appellate rights or withdrew their appeal, the parties have not discussed the issue in their briefs and since, in our view, reversal is required even if the date of entry of the order directing a new trial is utilized, as Criminal Term did, we need not pass on that question.

A total of 64 days, representing the delay between entry of the order directing the new trial and the defendant’s first scheduled court appearance (May 20, 1982 — June 21, 1982), the period between the filing of the indictment and the arraignment (Sept. 10,1982 — Sept. 20,1982), which the defendant consented to by failing to object (CPL 30.30, subd 4, par [b]), and the interval between the arraignment and the first court date, to which the defendant also failed to object (Sept. 20, 1982 — Oct. 12, 1982), are all excludable (see People v O’Neal, 99 AD2d 844; People v Smith, 97 AD2d 485, supra; People v Gadsden, NYLJ, Jan. 21, 1982, p 13, col 3).

By virtue of these exclusions, the six-month period, measured from May 20, 1982, could not have expired until January 23, 1983. Inasmuch as the People “ask[ed] this case go to trial” on December 7, 1982, and any adjournment after that date was at the defendant’s request, there is no basis for dismissal pursuant to CPL 30.30 (see People v Moorhead, 61 NY2d 851; People v Giordano, 56 NY2d 524; People v Mastrangelo, 100 AD2d 914; People v Josefson, 100 AD2d 630; People v Evans, 99 AD2d 535). Mangano, Gibbons and Brown, JJ., concur.