People v. Jenkins

— Appeals by defendant from (1) a judgment of the Supreme Court, Queens County (Chetta, J.), rendered February 20, 1981, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence and (2) a judgment of the same court (Brennan, J.), dated October 24,1980 which dismissed his application for a writ of habeas corpus. Case remitted to the Supreme Court, Queens County, to hear and report, with all convenient speed, on the issue of whether defendant has been denied his right to a speedy trial. In the interim the appeals will be held in abeyance. Defendant made an omnibus motion which sought, inter alla, to dismiss the indictment on speedy trial grounds. By order dated April 16,1980, Criminal Term (Brennan, J.), inter alla, denied that part of the motion. By order dated September 30,1980 (Dubin, J.), defendant’s later motion to dismiss the indictment on speedy trial grounds was again denied. It appears that defendant’s speedy trial claim was computed from July 5, 1979, the date of Justice Naro’s order dismissing the first indictment filed against the defendant with leave to the People to resubmit the charges to the Grand Jury. The criminal action in this case, for the purpose of determining defendant’s speedy trial claim, commenced on the date the first accusatory instrument in the criminal proceeding was filed (see People v Lomax, 50 NY2d 351, 355-356). In light of the fact that Criminal Term did not consider the time period prior to July 5, 1979 when examining defendant’s speedy trial claim, this case is remitted to Criminal Term for reconsideration of the issue. Lazer, J. P., Gibbons, Niehoff and Boyers, JJ., concur.