People v. Aubin, 245 A.D.2d 805 (N.Y. App. Div. 1997). · Go Syfert
People v. Aubin, 245 A.D.2d 805 (N.Y. App. Div. 1997). Cases Citing This Book View Copy Cite
15 citation events (12 in the last 25 years) across 3 distinct courts.
Strongest positive: People v. Skoblicki (nydistctnassau, 2026-01-05)
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Skoblicki (2×)
nydistctnassau · 2026 · confidence medium
People v. Aubin , 245 AD2d 805, 806-807 (3rd Dept. 1997).
discussed Cited as authority (rule) People v. O'Day
N.Y. App. Div. · 2023 · confidence medium
CPL 30.30 (4) (f) excludes "the period during which the defendant is without counsel through no fault of the court." Here, the court was certainly without fault and we find the period between September 21, 2017 and October 31, 2017 (40 days) falls within this exclusion ( see People v Jones , 176 AD3d 1397 , 1398 [3d Dept 2019], lv denied 35 NY3d 942 [2020]; People v Rickard , 71 AD3d 1420, 1421 [4th Dept 2010], lv denied 15 NY3d 809 [2010]; People v Aubin , 245 AD2d 805, 806-807 [3d Dept 1997]).
discussed Cited as authority (rule) People v. O'Day
N.Y. App. Div. · 2023 · confidence medium
CPL 30.30 (4) (f) excludes "the period during which the defendant is without counsel through no fault of the court." Here, the court was certainly without fault and we find the period between September 21, 2017 and October 31, 2017 (40 days) falls within this exclusion ( see People v Jones , 176 AD3d 1397 , 1398 [3d Dept 2019], lv denied 35 NY3d 942 [2020]; People v Rickard , 71 AD3d 1420, 1421 [4th Dept 2010], lv denied 15 NY3d 809 [2010]; People v Aubin , 245 AD2d 805, 806-807 [3d Dept 1997]).
discussed Cited as authority (rule) People v. Jones
N.Y. App. Div. · 2019 · confidence medium
However, we agree with Supreme Court that defendant was "without counsel through no fault of the court" during the four days between his arraignment on the felony complaints and the appearance of his assigned counsel on September 3, 2014 (CPL 30.30 [4] [f]; see People v Rickard , 71 AD3d 1420, 1421 [2010], lv denied 15 NY3d 809 [2010]; see also People v Harrison , 171 AD3d 1481 , 1482 [2019]; People v Aubin , 245 AD2d 805, 806-807 [1997]) and that, therefore, the People had until March 6, 2015 to declare their readiness for trial.
discussed Cited as authority (rule) People v. Spencer
N.Y. App. Div. · 2016 · confidence medium
Inasmuch as “the record fails to establish that [the People] ever served [defendant] with a copy of the order or with notice of entry . . . , [defendant’s] 30-day period to appeal County Court’s order never began to run” (People v Aubin, 245 AD2d 805, 806 [1997]; see Washington, 86 NY2d at 854-855 ).
discussed Cited as authority (rule) People v. Spencer
N.Y. App. Div. · 2016 · confidence medium
Inasmuch as “the record fails to establish that [the People] ever served [defendant] with a copy of the order or with notice of entry . . . , [defendant’s] 30-day period to appeal County Court’s order never began to run” (People v Aubin, 245 AD2d 805, 806 [1997]; see Washington, 86 NY2d at 854-855 ).
discussed Cited as authority (rule) People v. Hicks
N.Y. App. Div. · 2008 · confidence medium
Specifically, County Court, after a hearing, correctly calculated that the six-day period between the date of the felony complaint on January 21, 2005 to the date of defendant’s arraignment with counsel before County Court on January 27, 2005 was not attributable to the People (see CPL 30.30 [4] [f]; People v Aubin, 245 AD2d 805, 806 [1997]).
discussed Cited as authority (rule) People v. Williams
N.Y. App. Div. · 2006 · confidence medium
Post-readiness delay for the appointment of 18-B counsel for a defendant “through no fault of the court” (CPL 30.30 [4] [f]), is not chargeable to the People (id.; see People v Cortes, supra at 210; People v Correa, 77 NY2d 930, 931 [1991]; People v Aubin, 245 AD2d 805, 806 [1997]; People v Woodward, 219 AD2d 837, 837 [1995]).
discussed Cited as authority (rule) People v. Brown
N.Y. App. Div. · 2005 · confidence medium
In addition, we find excludable the 21 days from when defense counsel failed to appear with his client before the scheduled grand jury proceeding (February 25, 2003) to the adjourned date (March 18, 2003) (see CPL 30.30 [4] [f]; People v Reed, 19 AD3d 312, 318 [2005]; People v Mannino, 306 AD2d 157, 158 [2003], lv denied 100 NY2d 643 [2003]) and the six days from when defense counsel withdrew (April 22, 2003) until new counsel appeared (April 28, 2003) (see People v Aubin, 245 AD2d 805, 806-807 [1997]; People v Edwards, 215 AD2d 498, 498 [1995]; People v Parker, 186 AD2d 593, 594 [1992], lv de…
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Dean A. Aubin
Appellate Division of the Supreme Court of the State of New York.
Dec 18, 1997.
245 A.D.2d 805
1997 N.Y. App. Div. LEXIS 13174
Mercure.
Cited by 11 opinions  |  Published
Mercure, J.

Appeal from an order of the County Court of Essex County (Halloran, J.), entered September 17, 1996, which granted defendant’s motion to dismiss the indictment.

On May 6, 1995, a felony complaint was filed charging defendant with sodomy in the third degree. Following the issuance of an arrest warrant, defendant was taken into custody and arraigned in a local criminal court on May 10, 1995. Defendant waived his right to a preliminary felony hearing and was released on bail on May 22, 1995. On May 20, 1996, a Grand Jury returned an indictment charging defendant with sodomy in the third degree, sexual misconduct and endangering the welfare of a child, all based upon defendant’s alleged sexual contact with a 15-year-old victim on May 4, 1995. Defendant was arraigned in County Court on May 28, 1996, at which time the People stated their readiness for trial. On June 12, 1996, defendant moved to dismiss the indictment on constitutional and statutory speedy trial grounds (CPL 30.20, 30.30). Finding that the People were not ready for trial within the six-month period mandated by CPL 30.30 (1) (a), County Court granted defendant’s motion and dismissed the indictment. The People appeal.

As a threshold matter, we reject defendant’s contention that the appeal should be dismissed because of the People’s failure to file a timely notice of appeal or to file their brief within the 60-day period prescribed in 22 NYCRR 800.14 (b). Notably, the 30-day period for taking an appeal does not begin to run until the prevailing party serves a copy of the order and notice of[*806] entry thereof upon the other party (see, People v Washington, 86 NY2d 853; People v Mullins, 103 AD2d 994); here, the record fails to establish that defendant ever served the People with a copy of the order or with notice of entry. As such, the People’s 30-day period to appeal County Court’s order never began to run.

Turning now to the merits, we conclude that in computing the over-all time within which the People must be ready for trial, all “period [s] during which the defendant [was] without counsel through no fault of the court”[1] (CPL 30.30 [4] [f]) must be excluded, notwithstanding the fact that preindictment delay is normally charged to the People and regardless of whether the defendant’s lack of representation actually impeded the People’s progress in the case (see, People v Drake, 205 AD2d 996, 997; see also, People v Correa, 77 NY2d 930; People v Woodward, 219 AD2d 837, lv denied 87 NY2d 1027; People v Brown, 195 AD2d 310, lv denied 82 NY2d 891; People v DeLaRosa, 184 AD2d 302, lv denied sub nom. People v Rosario, 80 NY2d 933). The question is not one of reason but, rather, one of basic statutory construction. CPL 30.30 (4) identifies the various periods that must be excluded in computing the time within which the People must be ready for trial. In most cases (CPL 30.30 [4] [a], [b], [c] [i]; [d], [e], [g]), the statute restricts the excluded time to that which actually or reasonably resulted from the identified circumstance. By way of example, CPL 30.30 (4) (b) excludes “the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel”.[2] In sharp contrast, CPL 30.30 (4) (f) contains no similar qualifying language but absolutely excludes “the period during which the defendant is without counsel through no fault of the court”. Fundamentally, the inclusion of qualifying language in most of the paragraphs[*807] of CPL 30.30 (4) evinces unmistakable legislative intent that no such limitation was intended in the paragraphs containing no such qualification. We conclude, then, that neither fault on the part of defendant nor causation properly enter into a consideration of time to be excluded under CPL 30.30 (4) (f), and all periods during which defendant was unrepresented by counsel must be excluded.

The People contend, and defendant concedes, that defendant was without counsel for a total of 213 days. Because the total time accrued from the commencement of the criminal proceeding to the People’s statement of readiness was only 388 days, exclusion of 213 days brings the time chargeable to the People to 175 days, within the six months allowed by statute. Under the circumstances, we need not consider the People’s claim that a portion of the delay should be excluded for other reasons, including plea bargaining negotiations (CPL 30.30 [4] [b]), time accrued during pretrial motions (CPL 30.30 [4] [a]) and the absence of defendant (CPL 30.30 [4] [c]). In addition, we note that defendant makes no present claim of violation of CPL 30.20 and we perceive no meritorious basis for such a claim in any event. In view of the foregoing, we conclude that County Court erred in granting defendant’s motion.

Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is reversed, on the law, motion denied, indictment reinstated and matter remitted to the County Court of Essex County for further proceedings not inconsistent with this Court’s decision.

1

Because there is no claim that defendant ever acted as his own attorney, we shall give no consideration to so much of CPL 30.30 (4) (f) as provides for periods when the defendant is proceeding as his own attorney with the permission of the court.

2

In fact, even in the case of statutory exclusions containing an express requirement that the circumstance asserted as justification for the exclusion actually caused the delay, the requirement of causation has been greatly diminished by decisions of the Court of Appeals (see, People v Meierdiercks, 68 NY2d 613, 614-615 [“the controlling consideration is not whether defendants’ actions prevented the People from obtaining accusatory instruments sufficient for trial, but whether defendants waived the delay in the proceedings by requesting or consenting to the adjournments”]; People v Leone, 65 NY2d 674, affg 105 AD2d 757; People v Bratton, 65 NY2d 675, affg 103 AD2d 368; see also, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 30.30, at 170-171).