People v. Grafton

Judgment affirmed. Memorandum: Defendant was indicted in December 1983 for first degree rape and first degree assault. An order dismissing that indictment for prosecutorial misconduct was modified on appeal to permit resubmission to a new Grand Jury (People v Grafton, 115 AD2d 952). Following a second indictment defendant moved for dismissal on the ground that his statutory right to a speedy trial had been violated (CPL 30.30). The trial court denied defendant’s motion and, after a nonjury trial, found defendant guilty as charged. On appeal defendant contends that the court erred in denying his motion pursuant to CPL 30.30; that the People failed to disprove his alibi defense beyond a reasonable doubt; and that he should have been adjudicated a youthful offender. We find no merit to defendant’s arguments.

The People filed a notice of appeal from the order dismissing the first indictment on February 20, 1985. According to the Appellate Division Rules, the appeal should have been perfected by April 20 (Rules of App Div, 4th Dept, 22 NYCRR 1000.5 [b] [2]). When the People failed to perfect their appeal by that date, defendant moved to dismiss the appeal. The People opposed the motion and requested an extension of time to perfect the appeal until August 30, 1985. The appeal was perfected on that date. Defendant now contends that the period from April 20, when the appeal should have been perfected, to August 30, when it was perfected, is not an excludable period pursuant to CPL 30.30 (4). We disagree. Although it is true, as the dissenter remarks, that the factors to be considered on a motion pursuant to CPL 30.30 are different from those determining the reasonableness of an appellant’s request for an extension, we believe that our order granting the People an extension of time to perfect their appeal (Rules of App Div, 4th Dept, 22 NYCRR 1000.3 [a] [1]), constitutes a finding by this court that the time requested was reasonable. Since CPL 30.30 (4) provides for the exclusion of a reasonable period of time to take an appeal, we find the factors to be interrelated. It would be inconsistent for this court to grant an order of extension upon a determination that the time requested was reasonable and subsequently to hold that it was unreasonable for purposes of CPL 30.30. We therefore find that the entire time in which the appeal was pending is excludable for purposes of CPL 30.30.

With respect to defendant’s alibi proof, we find that it was disproved beyond a reasonable doubt. The testimony of the alibi witnesses was equivocal and inconsistent and in conflict with defendant’s own testimony and with his statements to the police.

We find further that the court did not abuse its discretion in refusing to grant defendant youthful offender status. In view of the seriousness of the crime, the court was well within its broad discretion in denying such relief.

All concur, except Pine, J., who dissents and votes to reverse and dismiss the indictment, in the following memorandum.