Dre R. DuBrin, Special Assistant Monroe County Public Defender
In People v Farkas (_NY_, 2011 NY Slip Op 01318 [2/22/11]), the Court of Appeals decided a very important 30.30 case - against the defendant- but in so ruling confirmed principles that will often help defendants seeking to move to dismiss a superseding accusatory on 30.30 grounds.
In Farkas, the defendant was issued an appearance ticket for assault in the third degree. He was later arraigned on an assault third complaint and harassment second misdemeanor complaint (which commenced the criminal action). He was later indicted, charged with not only the misdemeanors but also a felony larceny. All the charges arose from the same incident. The defendant moved to dismiss the indictment, arguing that the People were entitled to exclude periods of pre-indictment delay only with respect to the misdemeanor charges, the argument being that the there had been no prior accusatory charging the felony larceny count.
The Court rejected that contention, finding that for 30.30 purposes, there is but one criminal action involving multiple accusatory instruments when the subsequent accusatory directly derives from a previous accusatory, regardless of whether charges of a different nature are alleged in the subsequent accusatory. The Court therefore concluded that the criminal action with respect to the felony commenced with the defendant's arraignment on the appearance ticket - even though the defendant was not issued an appearance ticket for that charge and the initial complaint failed to charge the defendant with that offense. The Court also concluded, logically (and unfortunately for the defendant) that the People were entitled to invoke the excludable time provisions with respect to all the excudable delay occurring between arraignment on the misdemeanor and the indictment charging the additional felony offense.