Appeal by the People from an order of the Criminal Court, Kings County

(W. Saitta, J.), dated May 6, 2003, which granted defendant's CPL 30.30 motion dismissing the action.

Order unanimously modified upon the law by providing that defendant's motion to dismiss the accusatory instrument is granted only to the extent of dismissing the count of the accusatory instrument charging a violation of Administrative Code of the City of New York § 10-131 (b) (1), by reinstating the remaining counts of the accusatory instrument and remanding the matter to the court below for all further proceedings; as so modified, affirmed.

In an accusatory instrument dated November 23, 2002, defendant was charged with selling and possessing air pistols and rifles (Administrative Code of the City of New York § 10-131 [b] [1]), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), menacing in the third degree (Penal Law § 120.15), resisting arrest (Penal Law § 205.30) and harassment in the second degree (Penal Law § 240.20 [1]). Inasmuch as one count thereof constituted a class A misdemeanor, the People were required to be ready for trial within 90 days of commencement of the action (CPL 30.30 [1] [b]). The action is deemed to be commenced on the date of the filing of the accusatory instrument (CPL 1.20 [16], [17]), November 23, 2002. At arraignment, the People announced that they were not ready and the case was adjourned to December 16, 2003. The People were not ready on that date and the matter was adjourned to February 24, 2003. On February 17, 2003, the People filed, off-calendar, a supporting deposition and a statement of readiness. The supporting deposition was sufficient to convert the misdemeanor complaint to an information (CPL 170.65 [1]) on all counts with the exception of the count charging a violation of Administrative Code of the City of New York § 10-131 (b) (1). Thus, as to said counts, the People were chargeable with 87 days. [*2]

In People v Minor (144 Misc 2d 846, 848 [1989], lv denied 74 NY2d 666 [1989]), this court stated that a "defect in a count does not necessarily require dismissal of all counts of a multi-count accusatory instrument. CPL 170.30 (1) (e) provides that the court may dismiss the accusatory instrument or any count thereof upon the ground that defendant has been denied his right to a speedy trial. The clear import of the statutory language is that the People's failure to timely proceed on one count of an accusatory instrument does not necessarily adhere to the remaining counts upon which the People could be ready for trial." The case further noted that "[s]peedy trial computations must, as a matter of course, often involve distinct considerations with respect to individual counts of a single accusatory instrument" (id.; see also People v Brooks, 190 Misc 2d 247 [App Term, 1st Dept 2001]; People v Shadrin, 2002 NY Slip Op 50468 [U] [Civil Ct, Kings County]). Accordingly, only the charge of violating the Administrative Code was properly dismissed.
Decision Date: December 09, 2004