APPEAL by the People from an order of the Supreme Court (Robert W. Doyle, J.), dated September 5, 2007, and entered in Suffolk County, which granted the defendant's motion pursuant to CPL 210.20(1)(g) and CPL 30.30(1)(a) to dismiss the indictment.
The opinion of the court was delivered by: Mastro, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, EDWARD D. CARNI and RANDALL T. ENG, JJ.
In a criminal prosecution, may the People avoid the dismissal of an indictment on speedy trial grounds by invoking the "exceptional circumstances" exclusion of CPL 30.30(4)(g) to exclude the period during which an appeal is pending in an unrelated prosecution involving similar legal issues? We hold today that they may not.
The defendant was arrested in Suffolk County on February 1, 2006, and was charged by felony complaint with the class E felony of attempted disseminating indecent material to a minor in the first degree (see Penal Law §§ 235.22, 110.05). Approximately six months later, on July 25, 2006, this Court decided the case of People v Kozlow (31 AD3d 788, revd 8 NY3d 554), which involved a Westchester County prosecution of a different defendant for the same offense, and which bore strong factual similarities to the instant case. In that case, this Court concluded that the evidence of attempted disseminating indecent material to a minor in the first degree was legally insufficient where the defendant's internet communications with an undercover police officer whom he believed to be a minor did not contain any visual sexual images (id.). It is undisputed that in the case at bar, the defendant's conduct similarly did not include the communication of any visual sexual images. Accordingly, the District Attorney's Office viewed this Court's decision in People v Kozlow (id.) as an impediment to the continued prosecution of the defendant, and it took no further action in this case. Significantly, the District Attorney did not seek to adjourn the matter, to withdraw the charge or to dismiss the felony complaint in the wake of this Court's decision.
On October 17, 2006, the Court of Appeals granted leave to appeal in the Kozlow case (7 NY3d 868). Thereafter, on April 26, 2007, the Court of Appeals reversed this Court, holding in part that a defendant charged with the offense of attempted disseminating indecent material to a minor in the first degree "may properly be convicted under that statute even though his communications contained no nude or sexual images" (People v Kozlow, 8 NY3d 554, 556).
Viewing the decision of the Court of Appeals as having removed the impediment to the continued prosecution of the instant defendant, the People subsequently sought and obtained an indictment of the defendant, inter alia, for attempted disseminating indecent material to a minor in the first degree, and the defendant was arraigned on that indictment on June 14, 2007, more than 16 months after he initially was arraigned on the felony complaint. The defendant thereafter moved pursuant to CPL 210.20(1)(g) and CPL 30.30(1)(a) to dismiss the indictment based on the violation of his right to a speedy trial. The People opposed the motion, contending that the time between this Court's decision in Kozlow and the decision of the Court of Appeals reversing it should be excluded pursuant to the "exceptional circumstances" provision of CPL 30.30(4)(g). In an order dated September 5, 2007, the Supreme Court, Suffolk County, granted the defendant's motion and dismissed the indictment, finding that the statutory exclusion for "exceptional circumstances" did not apply to the facts of this case. We affirm.
"CPL 30.30(1)(a) mandates that the People be ready for the trial of a felony within six months . . . from the commencement of the criminal action" (People v Chavis, 91 NY2d 500, 504). "Failure to be ready within six months will result in dismissal of the indictment unless the prosecution can show that certain time periods should be excluded" (id. at 504-505). "A defendant satisfies his initial burden under CPL 30.30 by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period'" (People v Drummond, 215 AD2d 579, 580, quoting People v Luperon, 85 NY2d 71, 77-78). "The burden then shifts to the People to identify the exclusions on which they intend to rely (People v Luperon, 85 NY2d 71, 77-78), commencing from the date on which the defendant was arraigned on the felony complaint" (People v Drummond, 215AD2d at 580).
The defendant satisfied his initial burden on the motion in this case. Furthermore, it is undisputed that the People's delay in being ready for trial exceeded the six-month time limit of CPL 30.30(1)(a) unless the period between the decisions of this Court in People v Kozlow (31 AD2d 788) and the Court of Appeals (8 NY3d 554) is excluded.
We find unpersuasive the People's contention that the foregoing interval should be excluded pursuant to the "exceptional circumstances" provision of CPL 30.30(4)(g). That section provides that, in computing the time within which the People must be ready for trial, the court must exclude:
"other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney ...