People v. Kendzia

99 A.D.2d 657

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 27, 1984
• Docket: Appeal No. 1
• Status: Published

Opinion

Judgment unanimously reversed, on the law, and indictment dismissed. Memorandum: Defendant was convicted of one count of grand larceny in the second degree, four counts of offering a false instrument for filing in the first degree and two counts of violating subdivision (b) of section 1145 of the Tax Law, all as a result of his failure to remit sales taxes to the State. A delay of over 14 months occurred between September 17, 1980 when the defendant was indicted and November 18, 1981, when the People first announced on the record that they were ready for trial. Defendant’s motion to dismiss the indictment on the ground of denial of his right to a speedy trial should have been granted (CPL 30.30, subd 1, par [a]), since this period exceeds six months and the People have not demonstrated sufficient excludable time. The People contend that the Trial Judge placed the case on the Trial Calendar on January 28, 1981 during a meeting in chambers in which neither counsel objected. However, this meeting was not transcribed and there is nothing in the record to indicate a trial date was set in the presence of counsel at that time. Therefore, the judgments must be reversed and the indictment dismissed (People v Hamilton, 46 NY2d 932; People v Tamulewicz, 88 AD2d 698). In view of our disposition, it is unnecessary to reach the other contentions raised. (Appeal from judgment of Niagara County Court, DiFlorio, J. — grand larceny, second degree.) Present — Dillon, P. J., Boomer, Green, O’Donnell and Schnepp, JJ.