Criminal Procedure Law (“CPL”) § 30.30 is the statutory speedy trial rule in New York State.  It sets forth the periods of time in which the People must be ready for trial, after the commencement of a criminal action, generally by the filing of an accusatory instrument.

 

The statute does not require the People (or the police) to speedily commence a criminal action (i.e. file an accusatory) after the commission of a crime.  Those time limitations are outlined in § 30.10.  See People v. Faulkner, 36 A.D.3d 1009 (3rd Dep’t, 2007).

 

CPL § 30.30 codifies for New York a defendant’s right to a speedy trial, pursuant to CPL §§ 30.20 and 170.30(1)(e), and the Constitutional rights guaranteed under the Sixth and Fourteenth Amendments to the U.S. Constitution, as well as Article I, section Six of the New York State Constitution.  See People v. Singer, 44 N.Y.2d 241 (1978).

 

As such, both statutory and Constitutional claims may be raised.

 

The initial burden is upon the defendant to make a motion that his Constitutional and/or statutory speedy trial rights have been violated.  People v. Brossoit, 682 N.Y.S.2d 273 (1998).

 

Then burden then shifts to the People to respond to such a motion and to identify any period(s) of time that may be excluded (“tolled”) from the statutory time frame.

 

Excludable time:

 

Section 30.30(4) lists certain periods that are excludable, and there is much caselaw regarding these exclusions.

 

One such exclusion often relied on by prosecutors is the delay resulting from a defendant’s absence or unavailability, pursuant to § 30.30(4)(c)(i).

 

In order sustain this exclusion, the People must show for absence that the defendant’s location is unknown and that he is avoiding apprehension or prosecution, or his location cannot be determined by due diligence; and for unavailability that his location is known but his presence for trial cannot be obtained by due diligence.

 

Thus, even where a defendant may be avoiding the charges and coming into court (i.e. on an outstanding bench warrant), the People still must show some due diligence in trying to secure the defendant’s presence for prosecution.  See People v. Bolden, 81 N.Y.2d 146 (1993).

 

Absent such a showing, the charge(s) should be dismissed, upon a motion pursuant to CPL §170.30(1)(e). 

However, be aware that the prosecutor could re-file the same charges against the defendant, if the case is still within the proper statutory time period to commence the action pursuant to §30.10.

 

By: Andrew Fiske, Esq.

 

Buffalo, New York

 

(716) 465-2532

 

fiskelaw@gmail.com