People v. Goss

Order affirmed. Memorandum: County Court properly dismissed the indictment on the ground that the People were not ready for trial within six months of the commencement of the criminal action (see, CPL 30.30 [1] [a]). The statutory period commenced with the filing of the felony complaint on July 19, 1993 (see, People v Sinistaj, 67 NY2d 236, 237) and expired 184 days later, on January 19, 1994. On January 14, 1994, five days prior to the expiration of the six-month period, an indictment was filed charging defendant with assault in the second degree and criminal possession of a weapon in the third degree. On that date, the People declared readiness for trial and sent a letter notifying defendant that they were ready for trial and advising him to appear for arraignment on January 24, 1994. On the scheduled arraignment date, the People repeated their declaration of readiness, but defendant did not appear. Defendant was arraigned 14 days later, on February 7, 1994.

The court properly concluded that the People’s announcement of readiness prior to defendant’s scheduled arraignment was insufficient to satisfy CPL 30.30 (see, People v England, 84 NY2d 1; People v Drake, 205 AD2d 996; People v Battaglia, 187 AD2d 808). The People contend that they effectively announced trial readiness on January 14, 1994 because, unlike the situation in People v England (supra), the operation of CPL 210.10 (2) did not render arraignment within the statutory period a theoretical impossibility. We reject that contention. In England, the Court of Appeals unequivocally held that arraignment "is an elemental prerequisite to trial readiness” and thus, the People could not validly declare readiness until defendant’s scheduled arraignment date (People v England, supra, at 5). Further, readiness pursuant to CPL 30.30 is practical, not theoretical. A valid statement of readiness may be made only "when the People are in fact ready to proceed” (People v England, supra, at 2, citing People v Kendzia, 64 NY2d 331, 337).

We further reject the contention of the People that the 10-day delay between the filing of the indictment and the scheduled arraignment was attributable to court congestion and, consequently, did not affect their readiness for trial (see, People v Correa, 77 NY2d 930, 931; see also, People v England, supra, at 4; People v Smith, 82 NY2d 676, 678). Nothing in the record indicates that the scheduling of defendant’s arraignment five days after the expiration of the statutory period was attributable to the court rather than the People (see, People v Middlemiss, 198 AD2d 755, 756; see also, People v Conner, 106 AD2d 301, affd 65 NY2d 852). The People bear the burden of making a record to reflect the basis for a period of delay, whether that delay is characterized as prereadiness (see, People v Smith, supra, at 678) or postreadiness (see, People v Collins, 82 NY2d 177, 181-182; People v Cortes, 80 NY2d 201, 215; People v Liotta, 79 NY2d 841). "It is not enough for the People to allege calendar congestion as a cause for delay; they must establish it as such on the record” (People v Clyde, 73 AD2d 1047, 1048; see, People v Smith, supra, at 678; People v Collins, supra, at 181-182). We conclude, therefore, that the entire period preceding defendant’s scheduled arraignment is "entirely chargeable to the unexplained laxity of the People” (People v England, supra, at 5). Because that period exceeds six months, we need not consider the additional two weeks between defendant’s scheduled arraignment on January 24, 1994 and the actual arraignment on February 7, 1994.

All concur except Fallon and Wesley, JJ., who dissent and vote to reverse in the following Memorandum.