People v. Stirrup

—Order, Supreme Court, Bronx County (Eugene Oliver, Jr., J.), entered on or about March 9, 1995, which granted defendant’s motion to dismiss the indictment pursuant to CPL 30.30, is affirmed.

The motion court dismissed the indictment pursuant to CPL 30.30 based on its calculation that 213 days of non-excludable time had elapsed since the commencement of the action. The People’s primary contention on appeal is that the court erroneously charged them with the 103-day period between January 22, 1993, the initial return date of the Desk Appearance Ticket ("DAT”), and May 4, 1993, when an accusatory instrument was ultimately filed against the defendant.

The record discloses that defendant appeared at the courthouse on January 22, 1993, the original return date, but was informed by police personnel in the courthouse to return on March 4, 1993 because no accusatory instrument had been filed. Defendant went to court on March 4, and again on April 16, but no accusatory instrument had been filed. On May 4, 1993, a felony complaint was filed charging defendant with forgery in the second degree and related crimes, and he was arraigned thereon.

The motion court found that the entire period between January 22, 1993 and May 4, 1993 was chargeable to the People since, under CPL 30.30 (5) (b), an action against a defendant who has been issued a DAT is deemed to have commenced "on the date the defendant first appears in a local criminal court in response to the ticket”. The People argue that, under the Criminal Procedure Law, a criminal action commences "by the filing of an accusatory instrument” (CPL 1.20 [16], [17]), and since none was filed here until May 4, the action could not have commenced, and the speedy trial provisions did not become applicable, prior to that time.

While this Court has yet to address this specific question, the Appellate Division, Fourth Department, has concluded that an action commences when a defendant first appears in court in response to a DAT, notwithstanding the fact that no accusatory instrument has been filed at that time (People v Velie, 193 AD2d 1107; see also, People v Han, 166 Misc 2d 246 [Crim Ct, Bronx County 1995]; People v Vescur, 134 Misc 2d 574 [Crim Ct, NY County 1987]). A recent decision of the Appellate Term, First Department, concurs with this result on constraint of People v Velie (supra; see, People v Brisotti, 169 Misc 2d 672 [App Term, 1st Dept]).

We find that the plain meaning of CPL 30.30 (5) (b) compels the conclusion that the Legislature created a specific exception to the general principle that criminal actions commence upon the filing of an accusatory instrument (see, People v Brisotti, 167 Misc 2d 688 [Crim Ct, Bronx County 1995], affd 169 Misc 2d 672; People v Vescur, supra; People v D’Alessio, 134 Misc 2d 1005 [Crim Ct, Richmond County 1986]).

The People’s argument, accepted by the dissent, that the defendant never appeared since he never came before a Judge, is unavailing. It was the failure to timely file an accusatory instrument, and the instructions given to defendant to return to court on a subsequent date, for which the police or prosecutors were solely responsible, which effectively prevented defendant from being arraigned by a Judge on the original return date (see, People v Han, supra). Thus, contrary to our dissenting colleague, we find that defendant appeared in response to the ticket within the meaning of CPL 30.30 (5) (b). We further note that given the underlying purpose of the statute in preventing prosecutorial delay, its literal terms should be applied in circumstances favorable to the defendant as well as the prosecution (cf., People v Parris, 79 NY2d 69). Accordingly, the 103-day period was properly charged to the People.

As we held on the codefendant’s appeal (see, People v Anderson, 231 AD2d 459, lv denied 89 NY2d 918), the 48-day period between January 14 and March 3, 1994 was includable. The period between May 12 and July 19, 1993, encompassing both pre-indictment delay (see, People v Cortes, 80 NY2d 201, 211), and delays in filing the indictment (see, People v Correa, 77 NY2d 930), is also includable.

Since the 219 days of includable time exceeds the 184 days permitted in this case, the motion was properly granted. Concur—Milonas, J. P., Ellerin, Williams and Mazzarelli, JJ.