Sullivan, J. P., and Kassal, J., dissent in a memorandum by Sullivan, J. P., as follows: Defendant was indicted for hindering prosecution in the first degree (Penal Law § 205.65) on November 2, 1988 and arraigned on November 4. On February 27, 1989, an Assistant District Attorney appeared and advised the court that the assistant to whom the case had been assigned was on trial and unavailable for at least another week. When asked if the defense was ready, an associate of the defense counsel told the court that the lead defense attorney, Mr. Richman, was out of town on vacation and that 'W, indeed, it does go to trial, it will be Mr. Richman.” The court then adjourned the matter until April 19, 1989, and marked the time excludable.
On March 23, 1989, the People filed a notice of readiness and served it on defense counsel. After an April 19 adjournment on consent, the case was adjourned on May 17 for 28 days until June 14 following an off-the-record bench conference. Before the court called the case on October 4, 1989, after five additional adjournments as to which a total of three weeks were charged against the People, the People requested one week as the assigned trial assistant was finishing a trial. The court agreed to the request and stated that the week would be charged against the People. The defense attorney (not-admitted) then advised the court that she had, that very morning, served motion papers on the District Attorney. The court directed her to the clerk’s office to file the papers. Although defense counsel did not so indicate at the time, the motion was one to dismiss the indictment on speedy trial grounds, pursuant to CPL 30.30.
After argument, on December 8, 1989, the court granted the motion finding that 213 days chargeable to the People had elapsed since the commencement of the action. The court *112charged the People with 24 days covering the period between February 27, 1989 and March 23, 1989, 31 days between May 17, 1989 and June 14, 1989 and seven days between October 4, 1989 and October 11, 1989. In my view, the court erred in not excluding these periods from the time chargeable to the People.
As to the period from February 27 to March 23, CPL 30.30 (4) (b) excludes any period where the defense consented to an adjournment. Consent has been found when defendant fails to object to the delay. (See, e.g., People v Brown, 113 AD2d 812, 813, lv denied 67 NY2d 649; People v Garfinkel, 112 AD2d 949, 950, lv denied 66 NY2d 919; People v Gaggi, 104 AD2d 422, 423, appeal dismissed 65 NY2d 636.) While the burden rests on the People, not the defense, to show readiness (see, People v Hamilton, 46 NY2d 932, 933), that principle is not applicable to the circumstances here where defendant, implicitly to be sure, consented to two of the three adjournments at issue and had brought on a speedy trial motion before the third adjournment. When the court, on February 27 asked if defendant was ready, the associate present stated, "Judge not today. Mr. Richman’s on vacation. If, indeed, it does go to trial, it will be Mr. Richman. So he’s in Puerto Rico.” Thus, the defense was not only unready but totally unavailable. In such circumstances, defendant gave implied consent to the adjournment. (See, People v Sinistaj, 111 AD2d 41, revd on other grounds 67 NY2d 236 [Defense considered to consent to adjournment and hence time excludable, when attorney stated he was unavailable for trial and suggested new date.].) It is also worth noting that the court originally declared the adjournment excludable and defendant raised no objection at that time. This ruling was changed in the court’s disposition of the speedy trial motion.
Likewise, the adjournments of May 17 and October 4 should also be considered excludable. At both of these appearances the defense attorney was again absent. On May 17, the associate who earlier declared that only Mr. Richman would try the case appeared, while on October 4, a non-admitted attorney stood in for Mr. Richman. Neither person appearing for the defense could have tried the case. Therefore, in both instances, the defense tacitly consented to the adjournments, making this time, 35 days, excludable.
There is an additional reason for excluding the period between October 4 and October 11, 1989—defendant’s speedy trial motion was before the court. Such a motion tolls the statutory period. (People v Anderson, 66 NY2d 529, 536; see *113also, CPL 30.30 [4] [a].) In the instant matter, the motion, having been served on the People prior to the calendar call of October 4th, was before the court.
What is distressing about the dismissal in the instant matter is that it accepts gamesmanship in the allocation of responsibility for adjournments in the criminal parts. This is a case of a bailed defendant, who, from all that appears, was never anxious to go to trial and whose lawyer was never even present at any of the calendar calls at issue. Yet, the indictment is being dismissed because on two of those occasions, resulting in the charging of 31 days to the People, their representative could not be on trial in two courtrooms at the same time. The result, which the Legislature could never have intended, is patently absurd.
Excluding the three adjournments and the court’s three day error in calculating the time from May 17 to June 14, the total includable time is 151 days, well within the statutory requirement. Thus, the motion to dismiss should have been denied.