PEOPLE v. FUGGAZZATTO, 62 N.Y.2d 862 (1984)

477 N.Y.S.2d 619, 466 N.E.2d 159

THE PEOPLE OF THE STATE OF NEW YORK, Appellant-Respondent, v. IGNATIUS FUGGAZZATTO, Respondent-Appellant.

Court of Appeals of the State of New York.Argued May 7, 1984
Decided June 7, 1984

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Harry J. Donnelly, J.

Elizabeth Holtzman, District Attorney (Brian D. Foley an Barbara D. Underwood of counsel), for appellant-respondent.

Andrew E. Abraham and William E. Hellerstein for respondent-appellant.

MEMORANDUM.

The order of the Appellate Division should be modified by reversing that part which denied defendant’s motion to

Page 863

vacate his plea and by dismissing indictment No. 1158/73 and, as so modified, affirmed.

Two indictments are in issue, No. 5172/72 and No. 1158/73, filed simultaneously. Defendant’s motions pursuant to CPL 30.30
to dismiss both indictments were denied. Defendant proceeded to trial on the first, resulting in a conviction, and entered a plea of guilty on the second, on the understanding that the sentence imposed would run concurrently with and not exceed the first. For the reasons stated in the Appellate Division’s memorandum (96 A.D.2d 538), we agree that the period of more than six months between the filing of the indictments and the first attempt to execute the bench warrant was not excludable from the time limitations imposed by CPL 30.30, and that defendant’s conviction was properly set aside and indictment No. 5172/72 dismissed. We note further that the period of more than six months between the dismissal of the felony complaint and the filing of the indictment itself provided an independent basis for dismissal under CPL 30.30 (People v Osgood, 52 N.Y.2d 37).

Defendant’s plea having been induced by the understanding that the sentence would be concurrent with the sentence imposed for his conviction, since set aside, the plea must be vacated (People v Clark, 45 N.Y.2d 432, 440). Remittal for further proceedings on the second indictment is unnecessary because the speedy trial motion encompassed both indictments, and the reasons for dismissing the first apply with equal force to the second.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

Order modified by vacating defendant’s plea to indictment No. 1158/73 and dismissing indictment No. 1158/73 and, as so modified, affirmed in a memorandum.