Judge Linda Poust Lopez
Defendant, charged with driving while intoxicated, among other things, moved for dismissal on both statutory and Constitutional grounds. In a prior order, a court denied the motion finding only 73 days were chargeable to prosecutors under Criminal Procedure Law §30.30. This court questioned the includability of a 13 day period noting it was crucial in resolving the §30.30 issue as the parties did not dispute the remaining periods. Prosecutors argued the period in the aftermath of Hurricane Sandy should be excluded as both an exceptional circumstance, and because of the Governor’s Executive Order. Prosecutors stated "not ready" on Nov. 14, 2012 claiming Officer Cleri lost his home in the hurricane. The court noted if Cleri was a material witness, the adjournment between Nov. 14, and Nov. 27, 2012 would be excludable, yet prosecutors did not claim Cleri was a material witness. It stated prosecutors failed to explain on Nov. 14, or now, why they needed Cleri, and there was no indication Officer Drews, the arresting officer, was unavailable. Thus, the 13 days was charged to prosecutors bringing the includable time to 98 days which was above the 90 days permissible. Thus, dismissal on speedy trial grounds was granted.
