United States District Court, W.D. New York
June 10, 2005.
UNITED STATES OF AMERICA, Plaintiff,
ANDRE GREEN, Defendant.
The opinion of the court was delivered by: MARIAN W. PAYSON, Magistrate Judge
Section 3161(h)(1)(J) of Title 18, United States Code, permits
the exclusion of 30 days once a motion is taken "under
advisement" by the Court. A motion is taken under advisement
"once the court has everything it expects from the parties prior
to making its decision." United States v. Piteo, 726 F.2d 50,
52 (2d Cir. 1984); United States v. Bufalino, 683 F.2d 639,
642-44 (2d Cir. 1982), cert. denied, 459 U.S. 1104 (1983). In
this case, that occurred on May 11, 2005, the deadline for the
submissions of post-hearing memoranda.
A review of defendant's motion papers and the papers submitted
on the government's behalf is under way, and a decision on the
omnibus motions will be made with reasonable dispatch. It now
appears that full consideration of the motions made on behalf of
the defendant will take time beyond the 30 day advisement period
and that "it is . . . open to . . . [the court] to find that the
interest of justice is best served by granting a continuance
under § 3161(h)(8) for the excess period,. . . ." United States
v. Bufalino, 683 F.2d at 645.
Based upon the Court's current examination of the several and
myriad issues presented by the motions, and further upon my
findings that the interest of justice in a continuance overrides the defendant's and the public's interest
in a speedy trial, a continuance is granted pursuant to §
3161(h)(8)(A) until June 24, 2005, for the purpose of rendering a
This order "puts defense counsel on notice that the speedy
trial clock has been stopped." United States v. Tunnesen,
763 F.2d 74, 78 (2d Cir. 1985). If counsel believes, for any reason,
"that this [exclusion] is inappropriate, an objection may be
raised and a record made at that time." Id.; see also United
States v. Kiszewski, 877 F.2d 210, 215 (2d Cir. 1989)
(prosecutors are responsible along with the court in paying
attention to Tunnesen).
The foregoing constitutes a decision and order pursuant to
28 U.S.C. § 636(b)(1)(A), and the Speedy Trial Act.
IT IS SO ORDERED.
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