
    The People of the State of New York, Appellant, v Vernon Jones, Clint Sanders and Edward Mayfield, Respondents.
    Supreme Court, Appellate Term, Second Department,
    November 7, 1991
    
      APPEARANCES OF COUNSEL
    
      Charles J. Hynes, District Attorney (Leonard Joblove of counsel), for appellant. Elon Hardaz for Edward Mayfield, respondent.
   OPINION OF THE COURT

Memorandum.

Order unanimously reversed upon the law, complaint reinstated and matters remanded for further proceedings.

Each of the defendants was charged with multiple counts of rape, sodomy, attempted sodomy, sexual abuse and endangering the welfare of a child in connection with an alleged incident involving a 16-year-old girl which took place on February 20, 1988 in Brooklyn. On March 7, 1988, the present criminal action was commenced with the filing of a felony complaint (see, CPL 1.20 [8], [17]), and defendants were arraigned thereon. On April 18, 1988, the People moved in open court to reduce the felony charges to misdemeanors, and the court made several notations in the file purporting to reflect the reductions. The People thereupon announced their readiness for trial. Subsequently, numerous adjournments and further statements of readiness occurred until, on March 9, 1989, the matter came on for trial before a different Judge, who was unable to determine from the papers, including the face of the complaint, what charges were reduced and to what they were reduced. On March 20, 1989, the instant motion to dismiss was served and filed.

At the outset, we note that there was never an effective reduction of the felony charges to misdemeanors, since the attempted methods used were not in compliance with statutory requirements (CPL 180.50 [3]; People v Minor, 144 Misc 2d 846, 848, lv denied 74 NY2d 666; People v Stack, NYLJ, Feb. 13, 1987, at 14, col 5 [App Term, 9th & 10th Jud Dists]). Although CPL 180.50 (3) (a) (iii) does permit such a reduction to be accomplished by attaching notations to the felony complaint, or a copy thereof, it is unclear from the record before us that the notations made by the court below were so attached. An examination of the notations themselves, moreover, reveals that they were in any event, too cryptic and ambiguous to be given effect. Thus, for example, they contained no reference to, or disposition of, one of the felonies appearing on the felony complaint (sexual abuse in the first degree). While the transcript for April 18, 1988 now reveals that the People intended that said charge be reduced to a violation of Penal Law § 130.55 (sexual abuse in the third degree), consideration may not be given to the same, since the accusatory instrument itself, together with attached notations, should reflect "the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged” (CPL 180.50 [3] [a] [iii]). Under the circumstances, therefore, the attempted reduction of the felony complaint, even though acquiesced in by defendants, was invalid and the felony complaint remained pending (see, CPL 1.20 [8]; People v Minor, supra). Inasmuch as the felony complaint should be deemed to be still pending in the case at bar, the applicable period for speedy trial purposes would be six months from the commencement of the action (supra; CPL 30.30 [1] [a]; see also, People v Kendzia, 64 NY2d 331).

We are also of the view that while a felony complaint remains pending, there may be excludable periods from the six-month time frame in which the People must be ready for trial (People v Worley, 66 NY2d 523; see also, People v Odoms, 143 Misc 2d 503). In Worley, the Court of Appeals held that even where a defendant’s actions do not prevent the People from obtaining an accusatory instrument sufficient for trial, he may waive delays in the proceedings by requesting or consenting thereto (People v Worley, supra, at 527).

When we consider the excludable periods between the commencement of the action in the case at bar and the bringing of the instant motion to dismiss for denial of a speedy trial (CPL 30.30), we conclude that the People’s six-month time limit has not been reached. From April 18 to May 12, 1988, there were 24 days of excludable time, since one of the defense attorneys was not present (see, People v Battles, 77 AD2d 405; People v Day, 139 Misc 2d 222, 224). From May 12 to June 20, 1988, 39 days of excludable time elapsed for the purpose of discovery (see, CPL 30.30 [4] [a]; People v Worley, supra). From June 20 to July 15, 1988, 25 days of excludable time elapsed for the purpose of resolving defense motions (CPL 30.30 [4] [a]; People v Worley, supra, at 525; People v Pani, 138 AD2d 532, 533, lv denied 71 NY2d 900). From July 15, 1988 to August 26, 1988, and from August 26, 1988 to September 26, 1988, a combined total of 73 days of excludable time elapsed due to adjournments at defendants’ requests (CPL 30.30 [4] [b]; People v Worley, supra, at 527). Similarly, from November 15 to November 28, 1988, and from November 28 to December 15, 1988, and from December 15, 1988 to December 20, 1988, a combined total of 35 days of excludable time elapsed due to adjournments at defendants’ request or with their consent (People v Kopciowski, 68 NY2d 615). From February 7, 1989 (when a Wade hearing was held) to March 7, 1989, 28 days elapsed which were excludable because a defendant was ill, both he and his attorney failed to appear, and a decision had yet to be made on the Wade hearing (CPL 30.30 [4] [a]; People v Moorhead, 61 NY2d 851, 852; People v Imbesi, 38 NY2d 629; People v Ellis, 123 Misc 2d 544). On March 9, 1989, the instant motion to dismiss was orally made and, on March 20, served and filed. Between the former and latter dates, 11 days of excludable time elapsed (CPL 30.30 [4] [a]; People v Worley, supra, at 525).

Lastly, when all of the aforesaid excludable periods are calculated, the total number of days excludable comes to 235 days. The six-month period for a felony complaint would in this case have expired on September 7, 1988, but when 235 days are added thereto, the six-month expiration date becomes April 30, 1989 (see, People v Smith, 97 AD2d 485). Inasmuch as the instant motion was brought on March 20, 1989, we are of the opinion that it should have been denied.

Monteleone, J. P.

(concurring). Although I agree that the accusatory instrument must be reinstated, I write separately from my colleagues to voice my displeasure with the actions taken by the People in this case.

On April 18, 1988, before Judge Gerschwer sitting in Part AP-1, the People announced their intention to reduce the pending felony charges to misdemeanors while retaining the one misdemeanor charge. The record reveals that the Assistant District Attorney read the Penal Law sections under which the defendants were originally charged in the felony complaint together with the corresponding sections under which the prosecution would proceed. Thereafter, the Assistant District Attorney announced the People’s intention to serve and file corroborating affidavits as well as their readiness for trial.

In People v Minor (144 Misc 2d 846, 848, lv denied 74 NY2d 666) this court held that the failure to comply with the procedures set forth in CPL 180.50 (3) (a) (iii) and (3) (b), with respect to reducing felony charges to misdemeanors, causes the reduction to be "invalid and of no legal effect and the felony complaint [to] remain * * * pending”. At bar, the court failed to properly effect the notations on the felony complaint so as to reflect the appropriate reductions. Thus, we have held that the felony complaint remained pending for purposes of determining whether the People announced their readiness for trial within the statutory time constraints of CPL 30.30.

Nevertheless, it is my view that the procedural actions taken by the People warrant a strong rebuke. In announcing their intention to reduce the felony charges, the People in effect have offered a stipulation to the court and defense counsel that they wish to prosecute on the lesser offenses. Upon the court’s acceptance of such reduction, with counsel’s acquiescence, the offer became a binding stipulation placed on the record in open court (cf., CPLR 2104). The People’s contention that they are entitled to the benefit of the six-month time frame applicable to felony charges is, therefore, inconsistent with their agreement spread on the record to prosecute these defendants on the lesser misdemeanor charges. In my opinion, the People should not be permitted to vitiate their agreements.

Accordingly, an in-court reduction from felony to misdemeanor charges should estop the People from seeking the protection of CPL 180.50 (3) (a) (iii) and (3) (b) when a CPL 30.30 motion is made. I am also aware that a stipulation among parties in a civil case is enforceable unless it offends the public policy of this State and that the provisions of a statute may be waived (Mitchell v New York Hosp., 61 NY2d 208).

However, on constraint of People v Minor (supra), the inadequate notations on the complaint in question rendered the proposed reductions a legal nullity. Thus, the felony charges remained pending at the time of the defendants’ motion to dismiss the complaint. Inasmuch as I agree with my colleagues that the time chargeable to the People did not exceed six months, the motion should have been denied.

Pizzuto and Williams, JJ., concur; Monteleone, J. P., concurs in a separate memorandum.  