People v. Avery

Order affirmed. Memorandum: On October 19, 1993, defendants were arrested and arraigned on a felony complaint that charged them with criminal possession of a controlled substance in the third and fifth degrees, criminally using drug paraphernalia in the second degree and criminal possession of a weapon in the third and fourth degrees. On April 14, 1994, defendants were indicted for criminal possession of a controlled substance in the third degree (two counts), criminally using drug paraphernalia in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), and criminal possession of a controlled substance in the seventh degree. On the same day, the People filed the indictment in Supreme Court, Erie County, announced their readiness for trial on the record, and sent letters to defendants informing them of the People’s declared readiness and scheduling each defendant’s arraignment for April 22, 1994. Defendants Avery and Cole were arraigned on the indictment on April 22, 1994, and defendant Gaymon was arraigned on the indictment on April 25, 1994. Thereafter, each defendant moved to dismiss the indictment for failure to comply with CPL 30.30, alleging that more than six months had elapsed from the commencement of the criminal action until arraignment on the indictment. Each defendant asserted that the People’s declaration of readiness for trial on April 14, 1993 was invalid and ineffective because the People were not in fact ready to proceed. Supreme Court, relying on People v England (84 NY2d 1), agreed and dismissed the indictment. 1019 We affirm. The People’s announcements of readiness prior to defendants’ scheduled arraignments were insufficient to satisfy CPL 30.30 (see, People v Goss, 214 AD2d 1007 [decided herewith]; People v Drake, 205 AD2d 996, 997; People v Middlemiss, 198 AD2d 755, 756). Arraignment “is an elemental prerequisite to trial readiness” (People v England, supra, at 5), and the earliest that the People can validly declare readiness is the date of arraignment (People v England, supra). There is no indication in the record that the scheduling of defendants’ arraignments after the expiration of the statutory period was attributable to the court rather than the People. All concur except Wesley and Davis, JJ., who dissent and vote to reverse in the following Memorandum.