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People v. Sheehan

Criminal Court of the City of New York, New York County

April 2, 2013, Decided

2012NY077316

Opinion

 [*696]  [**886]  Joanne D. Quiñones, J.

Defendant is charged with criminal obstruction of breathing, in violation of Penal Law § 121.11 (a), attempted assault in the third degree, in violation of Penal Law §§ 110.00, 120.00 (1), and harassment in the second degree, in violation of Penal Law § 240.26 (1). Defendant now moves to dismiss the information on the grounds that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law §§ 30.30 (1) (b) and 170.30 (1) (e). In determining the motion, the court is called upon to examine the scope and meaning of the executive orders issued by the Governor with regard to Hurricane Sandy.

Discussion 

In this case, the highest crime charged against the defendant is a class A misdemeanor (see Penal Law § 121.11 [a]). ] Class A misdemeanors are punishable by a sentence of imprisonment not to exceed one year (Penal Law § 70.15). ] Where the defendant is charged with a class A misdemeanor, a motion to dismiss on speedy trial grounds [**887]  must be granted where the People are not ready for trial within 90 days of commencement of the  [***2] criminal action (CPL 30.30 [b]).

] The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute (People v Santos, 68 NY2d 859, 861, 501 NE2d 19, 508 NYS2d 411 [1986]). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss (id.).

Based on a review of the court file, the stenographic minutes of October 2, 2012, and the submissions of the parties, the court finds as follows:

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39 Misc. 3d 695 *; 962 N.Y.S.2d 886 **; 2013 N.Y. Misc. LEXIS 1247 ***; 2013 NY Slip Op 23097 ****; 2013 WL 1319623

 [****1]  The People of the State of New York, Plaintiff, v Niall Sheehan, Defendant.

CORE TERMS

executive order, speedy trial, adjournment, excludable, cases, exceptional circumstances, suspending, arraignment, suspension, disaster, emergency, limitations period, chargeable, Hurricane, further notice, expired, defense counsel, Penal Law, misdemeanor, courthouse, reopened, orders

Criminal Law & Procedure, Criminal Offenses, Classification of Offenses, Misdemeanors, Dismissal, Grounds for Dismissal, General Overview, Preliminary Proceedings, Speedy Trial, Statutory Right, Accusatory Instruments, Burdens of Proof, Statutory Right, Excludable Time Periods, Governments, Local Governments, Duties & Powers, Police Powers