
    The People of the State of New York, Appellant, v Frank Sinistaj, Respondent.
    Argued February 7, 1986;
    decided April 3, 1986
    
      POINTS OF COUNSEL
    
      Mario Merola, District Attorney (Roger L. Stavis and. Steven R. Kartagener of counsel), for appellant.
    The court below erred by refusing to apply to a superseding indictment for purposes of statutory speedy trial analysis, those periods of excusable delay occasioned by defense counsel and excluded from speedy trial time computations concerning the original indictment pursuant to CPL 30.30 (4). (People v Lomax, 50 NY2d 351; People v Weirich, 65 AD2d 932, 49 NY2d 1020; People v Osgood, 52 NY2d 37; People v McBride, 126 Misc 2d 272; People v Twine, 121 Misc 2d 762; People v White, 115 Misc 2d 800; People v Sturgis, 38 NY2d 625; People v Kendzia, 64 NY2d 331.)
    
      Walter L. Rich for respondent.
    The court below did not err in holding that for statutory speedy trial purposes periods of excusable delay applicable to an original indictment are not applicable to a superseding indictment charging the same crime but under a different theory. (People v Lomax, 50 NY2d 351; People v Osgood, 52 NY2d 37; People v Twine, 121 Misc 762; People v White, 115 Misc 2d 800; People v Cruz, 123 Misc 2d 316; People v Reid, 110 Misc 2d 1083; People v McBride, 126 Misc 2d 272.)
   OPINION OF THE COURT

Hancock, Jr., J.

Under this court’s decisions in People v Lomax (50 NY2d 351) and People v Osgood (52 NY2d 37), an indictment which replaces an earlier one in the same criminal action should be related back to the original accusatory instrument for the purpose of determining the commencement of the six-month readiness period imposed by CPL 30.30 (1) (a). The question on this appeal is whether such an indictment should be related back as well for the purpose of computing excludable time under CPL 30.30 (4). We hold that it should be.

On November 20, 1981, a felony complaint was filed charging defendant with criminal possession of a weapon in the third degree under Penal Law §265.02 (4) and other related crimes. On December 3, 1981, an indictment was filed containing those charges. Several months later, on July 13, 1982, the People obtained a second indictment which replaced the weapon possession count of the original indictment and charged defendant with criminal possession of a weapon in the third degree under Penal Law § 265.02 (1). This second indictment was obtained after the People realized that defendant, who had been accused of possessing the firearm in his office, had mistakenly been indicted under a provision of the Penal Law specifically excluding possession in a "place of business”. The second indictment, albeit charging defendant with a crime under the same Penal Law section, based on the same criminal transaction and involving the possession of the same weapon, contained an additional element not included in the first indictment — i.e., that defendant had previously been convicted of a felony. On August 20, 1982, the People answered ready for trial on the record and, several weeks later, on September 29, 1982, defendant moved for dismissal of both indictments on the ground that the People had failed to satisfy the requirements of CPL 30.30.

Supreme Court, calculating delays in excess of six months chargeable to the People, dismissed both indictments. On appeal, the Appellate Division unanimously modified Supreme Court’s order by reinstating the first indictment and affirming the dismissal of the second. The court held that certain periods of delay had been erroneously charged to the People and that, excluding such periods, the six-month time limitation had not been violated with regard to the first indictment. It held, however, that these same excludable periods of time were "simply inapplicable” to the second indictment inasmuch as that indictment had not even been filed within six months of the original felony complaint. (Ill AD2d, at p 43.) Noting that seven months had passed between the time of that complaint and the second indictment, the court concluded that the People could not possibly have satisfied the ready-for-trial requirements of CPL 30.30 and, therefore, that Supreme Court’s dismissal of the second indictment had to be affirmed. The People appeal to this court from the latter portion of the Appellate Division’s order, and we now reverse. CPL 30.30 requires that the People be prepared to proceed to trial within six months, plus excludable time, from the commencement of the criminal action. The statute does not address problems involving speedy trial rights or due process in a constitutional sense. Rather, it is purely a statutory "readiness rule”. It was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly (see, People v Anderson, 66 NY2d 529, 535; People v Worley, 66 NY2d 523, 527; Bellacosa, Practice Commentary, McKinney’s Cons Law of NY, Book 11 A, CPL 30.30, pp 148-149; compare CPL 30.20). With this in mind, our analysis of the question here is simplified.

Consistent with the legislative intent to limit the prosecutor’s time for trial readiness, we held in People v Lomax (50 NY2d 351, supra) that a new indictment, returned after the original one had been dismissed, should be related back to the commencement of the criminal proceeding for purposes of the six-month readiness period under CPL 30.30 (1) (a). We reasoned that there "can be only one date which marks the 'commencement’ of [a criminal] action” for the purposes of CPL 30.30, "the date on which the first accusatory paper is filed” (id., at p 356; see also, CPL 1.20 [17]). This is so, we said, "notwithstanding that the original accusatory instrument may be replaced or superseded during the course of the action” and even despite "the issuance of successive indictments” (id., at p 356). Applying this reasoning in People v Osgood (52 NY2d 37, supra), we came to a similar conclusion with respect to an indictment which had been returned sometime after the original felony complaint had been dismissed for the People’s failure to proceed with a felony hearing.

We perceive no logical reason why, when a subsequent indictment is related back to the commencement of the proceeding for purposes of applying the six-month limitation prescribed by CPL 30.30 (1) (a), it should not also be related back for the purpose of computing the time to be excluded from that limitation. A contrary holding — treating the subsequent indictment as part of the original criminal action for imposing the time limit under CPL 30.30 (1) (a), but not permitting the applicable exclusions under CPL 30.30 (4)— would offend the accepted rule of construction that all parts of a statute should be read together to determine the fair meaning of the whole (McKinney’s Cons Laws of NY, Book 1, Statutes §§97, 98). It would, in effect, afford different treatment to a subsequent indictment under subdivision (4) than that given under subdivision (1) (a). Such fragmenting of the statute in its application should be avoided. As we have recently emphasized, CPL 30.30, which should be implemented as one integral statutory scheme, must be interpreted "so as to harmonize its various provisions” (People v Anderson, supra, at p 535).

Moreover, a rule that succeeding indictments are not to be related back to the commencement of the criminal action for computing excludable time would have consequences which do not further the aim of CPL 30.30 and could not have been contemplated by the Legislature. Contrary to defendant’s contentions, the effect of such a rule would be to establish an arbitrary six-month cut-off period beyond which a replacement or superseding indictment could not be returned — even one based on evidence revealed for the first time after the six-month period. It is not suggested that such a result would be reasonable or could have been intended by the Legislature in adopting CPL 30.30. Indeed, the rule would render ineffective the provisions of CPL 200.80 which specifically permit the People to seek "another indictment” in the same criminal action, "any time before entry of a plea of guilty to an indictment or commencement of a trial thereof’. Again, the canons of statutory construction would be violated (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 97, 98).

Contrary to defendant’s arguments, our construction of CPL 30.30 to require that all excludable periods must be deducted from the "total time” (People v Lomax, supra, at p 357), starting with the filing of the accusatory instrument (CPL 1.20 [16], [17]), is entirely consistent with the purpose of CPL 30.30 as a prosecutorial readiness rule. Nor is the construction unfair to defendant. The District Attorney remains entitled to but one six-month readiness period. The issuance of a successive indictment neither affords him additional excludable time nor does it renew, toll, or in any way supplement that single, six-month limitation which always commences to run upon the filing of the initial accusatory instrument.

Here, application of the excludable periods of time to the second indictment, as well as to the first, requires that the motion to dismiss be denied. The Appellate Division’s computation of excludable time, which is not challenged on this appeal, reduces the "total time” within which the People became ready for trial under the second indictment to less than the six-month statutory limitation. Hence, the People satisfied the ready-for-trial requirements of CPL 30.30.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, and indictment No. 2646/ 82 reinstated.

Alexander, J.

(dissenting). Under the authority of People v Lomax (50 NY2d 351) and People v Osgood (52 NY2d 37) a superseding or replacement indictment properly may be related back to the original accusatory instrument for the purpose of determining the commencement of the six-month readiness period imposed upon the People by CPL 30.30 (1) (a), and for the purpose of computing excludable time under CPL 30.30 (4).

The majority would accord the same treatment to what they characterize here as a "successive” indictment, despite the fact that it is neither a "superseding” nor a "replacement” indictment, and in fact charges a completely new crime. Because I believe that the rule enunciated by the majority is not warranted under any fair reading of Lomax and Osgood, and impermissibly weakens the CPL 30.30 readiness rule, I respectfully dissent.

The facts of this case are not complex. On November 20, 1981, defendant was charged in a felony complaint with criminal possession of a weapon in the third degree under Penal Law § 265.02 (4) (possession of a loaded firearm outside of one’s home or place of business). The factual portion of the complaint noted that defendant had been previously convicted of a felony, but no charge was made of a violation of Penal Law § 265.02 (1) (criminal possession of a weapon in the fourth degree, as defined in subdivisions [1], [2], [3] or [5] of Penal Law § 265.01, by a defendant who has been previously convicted of any crime).

On December 1, 1981, defendant was indicted for various offenses including criminal possession of a weapon in the third degree, pursuant to Penal Law § 265.02 (4). Some seven months later, on July 8, 1982, a new indictment was returned charging defendant with criminal possession of a weapon in the third degree pursuant to Penal Law § 265.02 (1) in that he possessed a firearm and had been previously convicted of a crime. On the People’s motion, the count in the original indictment which charged the violation of section 265.02 (4) was dismissed. The People did not announce their readiness to proceed to trial until August 20, 1982.

It is now settled that the six-month readiness period imposed by CPL 30.30 (1) (a) commences on "the date on which the first accusatory paper is filed” (People v Lomax, 50 NY2d 351, 356, supra; see also, People v Osgood, 52 NY2d 37, 43, supra). Since the first accusatory paper filed here was the felony complaint of November 20, 1981, the second indictment, which was returned more than six months after that filing, can survive dismissal only if the excludable time computed under CPL 30.30 (4) resulting from the first indictment is also applied to the second indictment.

In Lomax (50 NY2d 351, supra), acknowledging that the starting point for analyzing a defendant’s speedy trial motion under CPL 30.30 is the "commencement of a criminal action”, we approved applying the excludable time under an original indictment to a "new indictment encompassing the same criminal charges” (People v Lomax, 50 NY2d, at p 355, supra) where the new indictment had been obtained by the District Attorney with leave of the court (CPL 210.20 [4]) following dismissal of the original indictment pursuant to the defendant’s motion.

In Osgood (52 NY2d 37, supra), we reaffirmed the "relation back rule” enunciated in Lomax, but did so because the People’s inexcusable six-month delay in announcing readiness for trial after the filing of the felony complaints caused those complaints to be dismissed. Thereafter, indictments were returned charging the same offenses, and the People argued that they should not be charged with the previous delay since the indictments actually commenced a new criminal proceeding. We rejected this argument, observing that the six-month ready rule was meant to eliminate unjustified delays and was not intended to provide rewards or incentives for delay.

Clearly then, the new indictment in Lomax (50 NY2d 351, supra) was a "replacement” indictment, and was authorized by express leave of the court. It charged the same offenses as originally charged and it was toward those originally charged offenses that the defendant’s delay-causing pretrial motions were directed. Thus, logic, fairness and the statute dictated that the People not be charged with delay caused by the defendant or occurring as a result of circumstances beyond the prosecutor’s control. However, where the prosecutor’s inexcusable failure to prosecute under the initial accusatory instrument resulted in a dismissal of the instrument, we denied the prosecutor an opportunity to recommence prosecution of the same charges through an indictment filed beyond the six-month limitation of CPL 30.30 (People v Osgood, 52 NY2d 37, supra). In Osgood, we affirmed our prior observation that " 'there can be only one criminal action for each set of criminal charges brought against a particular defendant, notwithstanding that the original accusatory instrument may be replaced or superseded during the course of the action’ ” (People v Osgood, 52 NY2d 37, 43, supra, quoting People v Lomax, 50 NY2d 351, 356, supra [emphasis supplied]).

Nowhere in the Criminal Procedure Law do we find authorization for "successive indictments” (see, CPL 30.10 [4] [b]; 210.20 [4]; 200.80). Although CPL 200.80 authorizes the seeking of " 'another indictment’ ” in the same criminal action " 'any time before entry of a plea of guilty to an indictment or commencement of a trial thereof ” (majority opn, at p 240), that authorization is limited to "another indictment * * * charging the defendant with an offense charged in the first indictment”. In such a case, the "offense [is] superseded by the second” indictment, and "the count of the first indictment charging such offense must be dismissed by the court” (CPL 200.80). The plain language of this statute requires that in order to supersede a prior indictment, a second indictment must charge the defendant with an offense charged in the first indictment (Matter of Gold v McShane, 74 AD2d 616, appeal dismissed 51 NY2d 910, lv denied 52 NY2d 704; People v Westbrook, 79 Misc 2d 902, 905). Here, the second indictment charges an offense different from that charged in the first indictment. Thus, it cannot be said to have superseded the first for it is axiomatic that each subdivision of a statute constitutes a separate offense (Penal Law § 10.00 [1]; 2 Waxner, New York Criminal Practice § 9.10). Indeed, a defendant could be guilty of a violation of both Penal Law § 265.02 (1) and § 265.02 (4), guilty of one but not the other, or guilty of neither. Each offense has distinct elements and the fact that they are both denominated "criminal possession of a weapon in the third degree” and defined in Penal Law § 265.02 does not make them the same offense. Moreover, CPL 200.80 requires that upon the "defendant’s arraignment upon the second indictment, the count of the first indictment * * * must be dismissed” (emphasis supplied). Here, the count in the first indictment was dismissed on the People’s motion after the second indictment was returned although there was no legal requirement that it be dismissed, as would be the case if the second indictment were truly a superseding indictment.

The term "replacement” indictment is nowhere defined, nor is it found, in the carefully structured Criminal Procedure Law. Our use of this term in People v Lomax (50 NY2d 351, supra) was in respect to a situation where the original indictment had been dismissed, leave granted to the People to resubmit and "a new indictment encompassing the same criminal charges was handed up” (People v Lomax, supra, at p 355; emphasis supplied). There the second indictment clearly charged the same offense and took the place of the first. It did not in any way change the theory of the prosecution nor would it have been possible for the People to proceed on both indictments. By contrast, the second indictment here did not replace the first indictment in the sense that this phrase is used in Lomax because the People could have proceeded with both indictments since each charged a different offense and required proof of distinct elements.

To conclude that Lomax and Osgood authorize the relation back of "replacement”, "superseding” or "successive” indictments, indiscriminately and without regard to legislative authorization, is to read those decisions too broadly and to ignore the rule that " '[t]he language of any opinion must be confined to the facts before the court’ ” (see, People v Anderson, 66 NY2d 529, 535, and cases cited therein). The second indictment is not a "superseding” nor is it a "replacement” indictment; it is a new indictment charging a different offense than that charged originally, and it thereby alters the theory of the prosecution. The People’s delay in securing this second indictment was not in any way "caused by the defendant [nor] is [it] due to circumstances beyond the prosecutor’s control” (People v Osgood, 52 NY2d, at p 41, supra). Indeed, the delay is unexplained and inexcusable. Therefore, in my view, it is an "inconsistent, if not perverse” (id.) construction of the statute and our decisions in Lomax and Osgood to excuse the People’s delay in prosecuting the charge contained in the second indictment.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye and Titone concur with Judge Hancock, Jr.; Judge Alexander dissents and votes to affirm in a separate opinion.

Order insofar as appealed from reversed, etc. 
      
      . Defendant’s application to this court for leave to appeal from that portion of the Appellate Division’s order was denied.
     
      
      . In People v Lomax (50 NY2d 351) and People v Weirich (49 NY2d 1020, affg 65 AD2d 932) we affirmed orders which gave effect to excludable periods of time permitted by CPL 30.30 (4) in computing the six-month time limits under CPL 30.30 (1) (a) as applied to succeeding indictments. No question concerning this application of CPL 30.30 (4) was raised and we address it here for the first time.
     
      
      . The rule would produce another anomaly. Under CPL 30.30 (4) (a) the time during which the court is considering a pretrial motion, including a motion to dismiss the indictment, is excludable. Under the rule adopted by the courts below, if a motion to dismiss the indictment were made within the six-month period, but not decided until after the six months had elapsed, no effect could be given to subdivision (4) (a) and the new indictment would be untimely.
     
      
      . Our decision here that the new indictment should be related back for purposes of giving effect to the excludable periods under CPL 30.30 (4) is dependent on our treatment of the indictment as one that is “directly derived” from the first accusatory instrument and must therefore be considered under Osgood and Lomax as part of the original action. Unless the new indictment is "directly derived” from the first accusatory instrument it is, of course, not related back for purposes of CPL 30.30 (1) (a) (cf. People v Osgood, 52 NY2d 37, 43-44; CPL 1.20 [16]).
     
      
       Our decisions in the double jeopardy area lend support to this analysis. We recently stated that "[t]he test for determining whether two offenses are the same within the meaning of the double jeopardy clause is whether two distinct statutory provisions each requires proof of a fact that the other does not” (People v Prescott, 66 NY2d 216, 221; see also, Blockburger v United States, 284 US 299). Applying this test here, it is clear that these provisions state separate and distinct offenses. In order to sustain a conviction under Penal Law § 265.02 (4), the People would not need to prove that defendant was previously convicted of a crime, while a prosecution for a violation of Penal Law § 265.02 (1) would not consider whether the firearm was loaded or whether the possession was in defendant’s home or place of business.
     