On 10 December 1992, near the intersection of Elizabeth and Broome streets in New York County, a robbery occurred during which an individual grabbed a necklace after a brief struggle. Thereafter, a New York Sex Crimes Lawyer said at the fifth police precinct the victim identified defendant from photographs as the perpetrator.
On 20 January 1993, defendant was arrested for the robbery when he kept his regularly scheduled appointment with his parole officer. At that time, defendant was also carrying seven glassines of heroin, which he allegedly admitted to his parole officer that he was intending to sell.
On 21 January 1993, defendant was arraigned in Criminal Court on a felony complaint charging the crimes of Robbery in the Second Degree and Criminal Possession of a Controlled Substance in the Third Degree.
On 26 January 1993, the grand jury indicted the defendant for the crimes of Robbery in the Second Degree and Grand Larceny in the Fourth Degree, after the District Attorney, for no apparent reason, chose to submit to the grand jury only evidence with respect to the theft of property from the aforesaid victim and none with respect to the later narcotics possession.
In fact, a New York Sex Crimes Lawyer said that no further action was taken with respect to the drug charge until 5 October1993 when the District Attorney, apparently realizing that the robbery indictment might never be successfully prosecuted because of witness unavailability, chose to resurrect the earlier drug charge by submitting evidence with respect thereto to a new grand jury which then voted the instant indictment, charging Criminal Possession of a Controlled Substance in the Third Degree.
On 1 November 1993, defendant was arraigned on the new indictment.
Thereafter, defendant immediately filed a motion to dismiss alleging that more than nine months had elapsed from the filing of the original felony complaint without the People ever asserting their readiness for trial.
On 14 December 1993, a Nassau County Sex Crimes Lawyer said the defendant’s motion was denied without prejudice to renew, holding that the Court of Appeals’ reasoning in People v. Sinistaj applied equally to the additional indictment filed as it did to the “superseding” or “replacement” indictments under consideration in Sinistaj.
On the herein motion to reconsider, the court is called upon to review the correctness of the lower court’s ruling concerning the scope of the Sinistaj case.
Defendant moves for the court to reconsider the decision and order the State Supreme Court denying without prejudice to renew his motion to dismiss the indictment on the ground that he was denied his statutory right to a speedy trial.
Under the law, an indictment must be dismissed where the People are not ready for trial within six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony.
It is well settled that a criminal action commences upon the filing of the first accusatory instrument notwithstanding the fact that this instrument may be replaced or superseded by a subsequent indictment during the course of the action.
Therefore, both the robbery and drug possession charges are deemed to have commenced on 21 January 1993, when the felony complaint was filed.
Although the People have incurred substantial time on the robbery indictment, both parties concede that as of the time of the motion to dismiss, six months of includable time had not elapsed. A Queens Sex Crimes Lawyer said both parties also concur that if the time excludable on the robbery indictment is not excludable on the subsequent drug indictment, the latter was time barred when voted.
The People argue again that the rule adopted by the Court of Appeals in People v. Sinistaj governs this case.
On the contrary, defendant also cites Sinistaj, but reads the case to concern only “replacement” indictments, not an indictment for “different” and “new” charges involving distinct criminal transactions.
The Court of Appeals has ruled in Sinistaj that the time excludable on a first indictment was likewise excludable on a subsequent or replacement indictment as long as each indictment was directly derived from the same accusatory instrument.
Here, resolution of the motion requires the court to determine whether the holding in the Court of Appeals ruling applies, where, as here, the charges in the earlier and later indictments, while contained together in the same original accusatory instrument, arise out of separate and distinct criminal transactions.
The court finds that the Sinistaj rule that time excludable on the first indictment is also excludable on any replacement indictment applies only when there is continuity between the crimes charged in the subsequent indictment and those charged in the original indictment and cannot be applied to the indictments herein which involve two entirely distinct criminal transactions.
Here, in no sense, can the drug indictment be regarded as succeeding or replacing the earlier robbery indictment. It did not come into being as a result of some irregularity or defect in the grand jury which voted the robbery or because of some change in the People’s theory of prosecution. The drug indictment involves a criminal incident entirely independent of and unrelated to the robbery. In fact, the only connection between the crimes contained in the two indictments is the arrest itself and the fact that the charges therein were originally placed together in the same felony complaint.
Neither crime is admissible or necessary upon the trial of the other. To the contrary, such proof would be prejudicial to a fair trial. Additionally, the robbery offense and the drug offense were based upon different acts and different criminal transactions.
Clearly, the People could have proceeded with the drug possession charge, notwithstanding the status of the robbery case and, none of the delay concerning the robbery indictment which is attributable to the defendant, delay occasioned by defense motions, has any direct application to the drug charge which involves different witnesses and different evidence.
For the same reason, any prior assertions of readiness by the People on the robbery charge are ineffective as to the subsequently indicted drug charge inasmuch as they cannot amount to a bona fide statement of present readiness.
Therefore, should this court now apply the “relation-back” rule of Sinistaj to exclude on the drug indictment all time excludable on the robbery indictment, it would, in effect, permit “joinder” of the two indictments for speedy trial purposes while disallowing such joinder for the trial of the underlying charges. The court declines to read Sinistaj to produce this incongruous result.
The court declines to extend the “relation-back” rule of Sinistaj to the factual circumstances.
Moreover, the First Department has held in one case that the People were limited to retrying the defendant on the charges included in the first indictment. The court reasoned that the “continuity” between the original and the superseding indictment as to the original charges did not extend to the additional charges and that, therefore, the added charges were barred by the speedy trial provisions of the law.
Consequently, there being insufficient continuity between the robbery charge and the drug charge to permit the People to claim the excludable adjournments under the first indictment in calculating the chargeable time under the second indictment, the court dismisses the indictment.
Wherefore, upon reconsideration of the governing case law, the court vacates the earlier order and dismisses the indictment.
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