
    The People of the State of New York, Plaintiff, v Vito Valenti and Joseph Saia, Defendants.
    Criminal Court of the City of New York, Kings County,
    April 26, 1988
    APPEARANCES OF COUNSEL
    
      Anthony Barratta for Vito Valenti, defendant. Caesar D. Cirigliano and Wayne Boden for Joseph Saia, defendant. Elizabeth Holtzman, District Attorney (Jay Kenigsberg of counsel), for plaintiff.
   OPINION OF THE COURT

Joseph Silverman, J.

The defendants move this court for orders dismissing the information herein on the grounds that the People were not "ready” pursuant to the statutory period of time required by CPL 30.30.

The People assert that 41 days of the time alleged by the defense to be chargeable to the People are excludable because the case was adjourned for them to provide open file discovery to the defense.

The defendants were arraigned on October 5, 1987 on a complaint charging them with the crimes of assault in the third degree, aggravated harassment in the second degree (two counts), menacing (two counts) and Civil Rights Law § 40-c (two counts).

The complaint was based upon information from two complaining witnesses. At the time of arraignment, there was a supporting deposition from only one informant. The case was adjourned to October 20, 1987 for the filing of the second supporting deposition. On that date the second supporting affidavit was not filed and the presiding Judge directed the People to turn over to the defense, open file discovery by November 30, 1987. On that adjourned date, the People again did not have the supporting deposition and the case was adjourned to January 15, 1988. On January 15, 1988 the People dismissed those counts in the complaint involving the informant whose deposition was not filed and answered "ready” for trial. This statement of readiness occurred 102 days after the arraignment.

The People contend that the period from October 20 to November 30 should not be included because the adjournment was for open file discovery, a practice akin to motion practice. The endorsements on the court file indicate that the People were charged with includable time for the October 20 adjournment. Furthermore, as evidenced from a review of the minutes of the proceedings for that date, defense counsel neither requested nor consented to the adjournment.

The minutes indicate that the court sua sponte ordered open file discovery for the next date and charged the People with the adjournment.

This court does not impute to the defendants any waiver of their rights on October 20 to be prosecuted by an information by not objecting to the court’s direction to the People to turn over open file discovery.

The court finds that the People were not ready within 90 days of arraignment and therefore the defendants’ motions to dismiss are granted.  