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People v. Zimny

Other Lower Courts

June 6, 2001

The People of the State of New York, Plaintiff,
v.
Jay Zimny, Defendant.

COUNSEL

Peter J. Pullano for defendant.

Howard R. Relin, District Attorney of Monroe County (Jeffrey P. DiPalma of counsel), for plaintiff.

OPINION

Kenneth R. Fisher, J.

Procedural History

The defendant is charged by indictment, filed on January 25,

Page 601

2001, with two counts of driving while intoxicated, and one count each of aggravated unlicensed operation of a motor vehicle in the first degree, failure to signal a turn, and passing a red light, all which are alleged to have occurred on May 19, 2000.

On June 20, 2000, the defendant appeared for the first time in local court pursuant to an appearance ticket. On that date, at the request of the defendant, the matter was adjourned with a return date in that local court of July 13, 2000. On July 13, 2000, the matter was referred to the Monroe County Grand Jury.

Defendant now moves this Court for dismissal of the indictment for failure of the People to file the instant indictment and announce readiness for trial thereon, within the statutory six-month period from the date of commencement, pursuant to CPL 30.30.

Discussion

By affirmation, the People acknowledge that the latest statutory date for filing the indictment and announcement of readiness was January 14, 2001, and this Court agrees with that acknowledgment. In support of the People's position that the filing of the indictment and announcement of readiness was timely on January 25, 2001, the People assert that the arresting New York State Trooper in this matter was unavailable for Grand Jury testimony from December 26, 2000 to January 22, 2001, thereby creating an " exceptional circumstance" under CPL 30.30 (4) (g). The People further acknowledge that the Trooper had been reassigned to a post down-State for training purposes, but was in fact available for Grand Jury testimony in Monroe County on Monday mornings and Friday afternoons throughout this period.

In calculating and accounting the days which the People assert should be excluded from the statutory deadline, the People state that the Monroe County Grand Jury does not meet on Fridays, and that many of the Monday dates in that time period could not be used to accommodate the Trooper's schedule.

The questions before this Court are, was the Trooper in fact unavailable, and have the People shown proof of due diligence and vigorous activity in attempting to secure his presence before the Grand Jury on a date before the January 14, 2001 deadline? Based upon the papers submitted and a review of the ...


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