The People, as limited by their briefs, appeal from 1) an order of the Criminal Court of the City of New York, New York County (Michael J. Yavinsky, J.), dated October 7, 2010, which granted defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30; 2) that portion of an order (same court and Judge), dated February 22, 2011, which, upon reconsideration, adhered to the original determination; and 3) that portion of an order (same court and Judge), dated March 22, 2011, which, while correcting an error in the aforesaid order of February 22, 2011, adhered to the determination therein.

Per Curiam.

Order (Michael J. Yavinsky, J.), dated October 7, 2010, reversed, on the law, defendant's motion denied and accusatory instrument reinstated. Appeals from orders (Michael J. Yavinsky, J.), dated February 22, 2011 and March 22, 2011, respectively, dismissed, as academic.

Defendant's CPL 30.30 motion should have been denied. Following this Court's reversal of defendant's original conviction and remand for a new trial (see People v Wells, 26 Misc 3d 143[A], 2010 NY Slip Op 50393[U] [2010]), the People were required to (re)announce their readiness for trial within 90 days — less any excludable time periods — of the date our order occasioning the retrial became final (see CPL 30.30[1][b]; [5][a]), viz., May 14, 2010, when the Court of Appeals denied the People's application for leave to appeal (see 14 NY3d 894). We find the time period here in dispute (May 10, 2010 to August 23, 2010) to be excludable as time resulting from an appeal (CPL 30.30[4][a]; see People v Yukel, 263 AD2d 416 [1999], lv denied 94 NY2d 830 [1999]). The May 10th adjournment was ordered by the trial court, in defendant's absence, for control purposes because of the (then) pendency of the People's application for leave to appeal to the Court of Appeals from this Court's order reversing defendant's original conviction. "We reject defendant's argument that the People had an obligation to advance the case to an earlier date upon receiving the certificate denying leave, and we find that this delay cannot be attributable to the People" (Yukel, at 417). Nor can the People be held responsible for any delay caused by an apparent clerk's error in miscalendaring the case for August 23rd, rather than the June 21st date intended by the court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 14, 2012