People v. Diane Wells


AT1 order dated August 14, 2012, reversing lower court’s grant of CPL 30.30 dismissal motion. Decision below: 36 Misc3d 144(A); 959 NYS2d 91. Smith, J., granted leave April 13, 2013.

ISSUE PRESENTED: Whether the excludable time resulting from an appeal (CPL 30.30[4][a]) ended on the date the Court of Appeals denied the People’s application for leave to appeal an appellate reversal, or whether it ended on a latter date to which the trial court had ordered a routine adjournment pending the Court of Appeals decision on the leave application.

Issue before the Court: CPL 30.30.  The defendant was convicted of a misdemeanor in Criminal Court, but the Appellate Term reversed and granted a new trial.  The People sought leave to appeal to the Court of Appeals, which application was denied on May 10, 2010.  Under CPL 30.30(5)(a), when a case is reversed on appeal and sent back for retrial, “the criminal action ... must be deemed to have commenced on ... the date the order occasioning the retrial becomes final.”  Due to a glitch on the part of the clerk’s office, however, the case was not next on the calendar until August 23, 2010, over 90 days later.  In response to defendant’s subsequent CPL 30.30 motion, the People argued that, pursuant to CPL 30.30(4)(a), the intervening time was excludable as “a reasonable period of delay resulting from” an appeal.  The hearing court granted the 30.30 motion due to “unexplained and unexcused prosecutorial inaction.”  The Appellate Term reversed and reinstated the accusatory instrument, relying on People v. Vukel, 263 AD2d 416 (1st Dept. 1999).


Held: The Court of Appeals reversed: “The mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not in itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30(4)(a).”  The People “provided no justification on the record” for the delay.  Vukel should not be followed.


CAL Observes: This is potentially a far more significant 30.30 holding than it appears at first blush.  In reversing, the Court stated that the People’s argument, if adopted, “would be inconsistent with ‘the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction’ (People v. Price, 14 NY3d 61, 64 [2010]).”  This holding may finally presage the demise of the weakly-reasoned Green (90 A.D.2d 705 [1st Dept. 1982]) line of cases, which hold that the first adjournment following a court’s decision on any pretrial matter is automatically excludable.  Of course, before Green can go down, the Court of Appeals has to have a suitable case before it, which means that the Green issue has to be preserved as a matter of law, which means that trial counsel must do a reply 30.30 affirmation to preserve the Green, issue, which means that Green might end up standing indefinitely.  In any event, with the proper case before it, the Court of Appeals appears to be more serious about CPL 30.30's requirements than the intermediate appellate courts.