Second Department Dismisses Charges on 30.30 Grounds

In People v. Stephen Price, the Second Department dismissed an indictment for the class E felony of attempted disseminating indecent material to a minor in the first degree (see Penal Law §§ 235.22, 110.05[6]). The government commenced prosecution in February of 2006. While the case was pending, the Second Department decided People v Kozlow (31 AD3d 788, revd 8 NY3d 554), wherein the court determined under circumstances similar to Mr. Price's case that evidence of disseminating indecent material to a minor in the first degree was legally insufficient where the defendant's internet communications with an undercover police officer whom he believed to be a minor did not contain any visual sexual images. After Kozlow, the district attorney viewed Kozlow as an impediment to further prosecution and took no further action on Mr. Price's case, but never moved to dismiss the charges. In April of 2007, the Court of Appeals reversed the Kozlow decision, and the government finally arraigned Mr. Price in June of 2007, 16 months after it had filed the felony complaint. Supreme Court granted Mr. Price's 30.30 motion, and the appellate division affirmed by stating:

"we note that the prosecution never sought any continuance as referenced in CPL 30.30(4)(g). Moreover, while the examples of exceptional circumstances set forth in that section are not exclusive, the statute clearly contemplates situations in which a district attorney encounters difficulty in obtaining evidence or in otherwise preparing for trial in the particular case before the court (see generally People v Washington, 43 NY2d 772; People v Robinson, 47 AD3d 847; People v Williams, 244 AD2d 587). Furthermore, although the Penal Law excludes reasonable periods of delay caused by appeals which involve the particular defendant who is being prosecuted (see CPL 30.30[4][a]), it does not similarly provide for an exclusion of time during the pendency of an appeal in an unrelated matter which merely involves similar legal issues (see People v Cortes, 80 NY2d 201, 211-212). To find otherwise would be to permit the People to charge a defendant with a crime and then hold the matter open indefinitely on the ground that a potentially relevant issue in another case before a different court might influence the open matter. Such an approach finds no support either in the language of the statute or in the cases interpreting it, and is antithetical to the very purpose of the speedy trial rule itself. "

As an aside, Note that Mr. Kozlow was disbarred from practice as an attorney before his case even made it to the Appellate Division.