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People v. Smith

Other Lower Courts

May 31, 2001

The People of the State of New York, Plaintiff,
v.
Wayne T. Smith, Jr., Defendant.

COUNSEL

Sebastian P. Graffeo, Buffalo, for defendant.

Edward M. Sharkey, District Attorney of Cattaraugus County, for plaintiff.

OPINION

Larry M. Himelein, J.

Defendant has been indicted for burglary in the third degree

Page 357

(Penal Law § 140.20), grand larceny in the fourth degree (Penal Law § 155.30 [1]) and criminal mischief in the fourth degree (Penal Law § 145.00 [1]). On March 20, 2001, defendant moved to dismiss pursuant to CPL 30.30 alleging that (1) accusatory instruments were filed on October 3, 1998; (2) defendant was arraigned on November 13, 2000; (3) far more than six months had elapsed without the People having declared their readiness for trial; and (4) defendant requested no adjournments and was not absent from the jurisdiction.T herefore, contends defendant, the indictment must be dismissed (see, People v Kendzia, 64 N.Y.2d 331; People v Hamilton, 46 N.Y.2d 932).

The People responded on March 27, 2001, alleging that (1) defendant was arrested and arraigned for these offenses on December 22, 1999; (2) on April 12, 2000, defense counsel sent a CPL 30.30 letter waiving time; (3) the People did not seek an indictment because of the waiver and the possibility of a plea; (4) at a conference on September 26, 2000, the People learned that former counsel no longer represented defendant; (5) on October 25, 2000, defendant was indicted and the People filed and served a statement of readiness; and (6) the arraignment was adjourned from November 27, 2000 to December 5, 2000 at defendant's request. The affidavit goes on to include some superfluous language relating to the constitutional right to a speedy trial.

A hearing was conducted on April 23, 2001. Detective William Welling of the Cattaraugus County Sheriff's Department testified that a warrant for defendant's arrest was issued on October 4, 1998, the same day the accusatory instruments were filed. On two occasions between October 4th and October 8th, Welling went to defendant's residence in Erie County but was unable to find defendant home. Welling then filed the warrant with his department to be sent to Erie County to be served.

Deputy Anthony Clabeau of the Erie County Sheriff's Department also testified. He was involved in the initial investigation, and defendant came to see Clabeau to tell him that he had not committed the burglary. Defendant later returned to see Clabeau and brought with him stereo equipment he claimed he had removed from a van because defendant believed it had been stolen during the burglary. When the arrest warrant was later received by his department, Clabeau attempted to serve it at least a half dozen times. One time when officers arrived at defendant's home, defendant ran out of the house and into the woods. Several times, Clabeau spoke to defendant's motherand

Page 358

asked her to have defendant turn himself in. Clabeau was also given permission to search the house for defendant but was unable to find him.

On December 9, 1999, Clabeau went to defendant's residence and defendant's mother told Clabeau that defendant was not there but offered to let Clabeau search the house. Again, the search was unavailing. However, shortly before he left, Clabeau heard a noise, crawled through a narrow space and found defendant hiding in a confined area. Clabeau then arrested defendant. Thus, after police officers went to defendant's residence 6 to 12 times, spoke with his parents several times, checked ...


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