Opinion
2005KN024309.
Decided June 6, 2006.
Defendant is charged with three counts of attempted Grand Larceny in the Fourth Degree [PL § 155.30(1)], and three counts of attempted Criminal Possession of Stolen Property in the Fourth Degree [PL § 165.45(1)].
Defendant now moves to dismiss the accusatory instrument on the ground that her right to a speedy trial has been denied pursuant to Section 30.30 of the Criminal Procedure Law. Specifically, defendant argues that the People's Statement of Readiness on September 27, 2005, was illusory because the defendant, who was out on bail on the instant case, had been rearrested in Queens County twelve days prior to September 27, 2005, and the People had failed in their obligation to produce her in court. The People have responded to defendant's motion by stating that the People were in fact ready on September 27, 2005 and that the 30.30 clock stopped running two weeks prior to its expiration date.
PROCEDURAL HISTORY
This case stems from defendant's April 18, 2005 arrest for felonies related to her alleged passing of three counterfeit checks. She was initially charged with three counts of Grand Larceny in the Fourth Degree pursuant to New York Penal Law § 155.30(1), three counts of Criminal Possession of Stolen Property in the Fourth Degree pursuant to Penal Law § 165.45(1), and three counts of Criminal Possession of a Forged Instrument in the Second Degree pursuant to Penal Law § 170.25 and released on bail.
On September 27, 2005, which was 163 days and five court appearances after the defendant's arrest, the People moved to reduce the felony charges against the defendant and charged her with six misdemeanor counts, specifically three counts of attempted Grand Larceny in the Fourth Degree (PL § 155.30) and three counts of attempted Criminal Possession of Stolen Property in the Fourth Degree (PL §§ 165.45). In addition to reducing the charges against the defendant, the People filed the supporting affidavits, converted the complaint to an information and declared themselves as ready for trial. The defendant has now moved to dismiss this case on the grounds that she has been denied her right to a speedy trial pursuant to CPL § 30.30.
RELEVANT DATES
Where the top count charged against the defendant is a class "A" misdemeanor, the People must announce ready for trial within ninety days of the commencement of the action, absent a showing of excludable time (CPL § 30.30[b]). However, when the People move to reduce a felony complaint to a misdemeanor through the reduction of the felony complaint to a misdemeanor information, CPL § 30.30(5)(c) specifically provides that the relevant time will be the original six months if the aggregate of the chargeable time already expired plus the new period measured from the filing of the new accusatory instrument would exceed six months. In this case, six months is equivalent to 183 days.
The following court dates were scheduled prior to the filing of Defendant's Motion to Dismiss on speedy trial grounds:
On April 18, 2005, the defendant was arraigned on a felony complaint. The court docket indicates that the case was adjourned for Grand Jury action. The defendant requests that the People be charged and the People agree. The court agrees that the People should be charged one day as a pre-readiness delay. (People charged 1 day)
On April 19, 2005, the People were not ready. The case was adjourned to April 21, 2005 for Grand Jury action or possible reduction. The parties agree, as does this court, that the People should be charged three days as a pre-readiness delay. (People charged 3 days)
On April 21, 2005 — the People were still not ready and the case was adjourned to May 19, 2005 for reduction. The parties agree, as does this court, that the People should be charged as a pre-readiness delay. (People charged 28 days)
On May 19, 2005 the People were still not ready and the case was adjourned to June 28, 2005 for reduction. The parties agree, as does this court, that the People should be charged as a pre-readiness delay. (People charged 40 days)
On June 28, 2005, the People were still not ready and the case adjourned until September 27, 2005 for reduction. The parties agree, as does this court, that the People should be charged as a pre-readiness delay. (People charged 91 days. — Total time charged to date — 163 days.)
On September 27, 2005 — The People moved to reduce the charges against the defendant, they filed the necessary corroboration to convert the accusatory instrument to an information and they announced ready for trial. The defendant however, was not present in court and her attorney informed the District Attorney and the Court that she had been arrested on another matter in Queens County on September 15, 2005. The People were ordered to prepare and file an Order to Produce with the New York City Department of Correction and the case was adjourned until October 26, 2005 for the defendant's production. (This is the time period in contention)
On October 26, 2005 the People were ready, the defendant produced and arraigned and the case was put over for possible disposition on December 8, 2005. (Excludable-Post readiness delay)
On December 8, 2005 the People were ready for trial. The case was adjourned to January 9, 2006 on consent for possible disposition. (Excludable-Post readiness delay)
On January 9, 2006 the People were ready for trial. The case was adjourned to January 27, 2006 on consent, for possible disposition. (Excludable-Post readiness delay)
On January 27, 2006 the People were ready for trial. The case was adjourned on consent to February 9, 2006 for hearings and trial. (Excludable-Post readiness delay)
February 9, 2006 the People were ready for trial. The defendant served a Motion to Dismiss and the Judge set a motion schedule. (Excludable-Post readiness delay. Total Chargable Days — 163)
DISCUSSION
Once a defendant has shown the existence of a delay greater than the statutory period, the burden to show any pre-readiness exclusion falls upon the People ( People v. Chavis, 91 NY2d 500, 504-505). The burden shifts back to the defendant to show post-readiness inclusions ( id.). In order to establish that the People are ready for trial, the record of the proceedings must show that the People were actually ready and (1) clearly stated their readiness on the record; or (2) filed and served a Certificate of Readiness off calendar ( People v. Smith, 82 NY2d 676; People v. Kendzia, 64 NY2d 331).
Both parties, as well as this Court, agree that all adjournments prior to September 27, 2005 are chargeable to the People and that all adjournments after October 26, 2005 are excludable under CPL § 30.30. The only contested time period is from September 27, 2005 to October 26, 2005. The defendant argues that the People should be charged for that adjournment because the defendant's absence from the courtroom due to her re-arrest and incarceration in Queens County made the People's announcement of readiness illusory. The defendant urges further that the People had imputed knowledge of the fact that the defendant was incarcerated and had a responsibility to produce her in court the first time her Kings County case was on the calendar, despite the fact that she was at liberty on that case and no one, other than her attorney, knew she would not be in court for that appearance.
The People on the other hand argue that they were ready for trial on September 27, 2005 and therefore should not be charged.
In order to determine whether the September 27 th adjournment was excludable, the court must first determine whether the adjournment for the purpose of producing the defendant constituted a pre-readiness or a post-readiness delay. The minutes of the September 27, 2005, proceedings reveals that the People reduced the charges against the defendant and provided a valid accusatory instrument along with corroboration. The court deemed that the instrument was an information. The People then informed the court, its clerk and the defendant in open court that they were ready for trial, thus meeting the readiness requirements under Kendzia, above.
An examination of the minutes of that court appearance, reveals that the matter of CPL § 30.30 time was brought up by the People and discussed by the parties. The Assistant District Attorney expressed her concern that the continuance date which was suggested by the court (October 26, 2005), was past the 30.30 expiration deadline. The judge handling the case at the time, responded that the adjournment, which was for the purpose of bringing the defendant to court, should not be charged to the People, but that the final determination would not be made by him. The defense counsel stated that she did not agree with this analysis but following a brief discussion, both parties agreed to the October 26, 2005 adjournment date.
The question presented is whether the People can be ready for trial within the meaning of CPL 30.30 when they have done everything that they are required to do in order to go forward in the absence of a defendant who was out on bail, had been making all of her court appearance in the instant matter and who no one anticipated would not be in court on the scheduled adjourned date because of a recent incarceration in another jurisdiction? This Court answers in the affirmative. The defendant cites People v. England, 84 NY2d 1 (1994), for the proposition that the People have an obligation to produce a defendant who is incarcerated within New York State and that their failure to do so affects their readiness for trial because defendant's presence is a prerequisite to a valid assertion of readiness. A closer analysis of that case, however, reveals a significantly different fact pattern from the one before this court. In England, the Court identified the sole issue before it was ". . . whether, in the unusual circumstances presented where, owing entirely to the People's delay, no indictment was handed up for the full six months the People could, prior even to the defendant's arraignment genuinely have declared readiness." In that case the People reported an indictment on the last day of the period within which the People were required to do so in order to be capable of bringing the defendant to trial within the CPL 30.30 time frame. The court referred to this as an "empty declaration".
In People v. Goss, 87 NY2d 792 (1996), the Court of Appeals clarified England and explained that the People are not prevented from announcing ready before a defendant is arraigned, as long as the proper filings are made and their readiness enunciated to the defense. The Goss court stated that England "carved out a single exception a declaration of readiness prior to arraignment is illusory in the "unusual circumstances" where arraignment within the statutory time period is impossible and that impossibility is attributable solely to the People."
There was no suggestion of bad faith in the matter before this Court where the People reduced the charges and filed corroboration in open court and communicated their readiness to the defendant's attorney, who knew her client's location and was able to contact her. There was also more than adequate time to arraign her on the new charges before the running of the speedy trial period.
The minutes of the September 27, 2005 hearing indicate that the defendant's counsel informed the court that the defendant was not present because she was being detained in Queens County on charges related to a subsequent arrest on September 15, 2006. The Court stated that an order for defendant's appearance would be issued and suggested an adjournment until October 26, 2006. The People questioned the new date, stating that they were concerned because the CPL § 30.30 deadline was approaching. When the People asked whether they would be charged, the court opined that they should not be charged because they were not requesting the adjournment, but that he was not the judge who would decide that issue. The defense attorney offered that she did not agree with the legal analysis of the Court and the District Attorney. Ultimately, the parties agreed to the date which the court had suggested.
The defendant urges, nonetheless, now argues that the People's claim of readiness was illusory because the defendant was incarcerated and the People had failed to produce her, citing case law which holds that knowledge of a defendant's incarceration within another New York jurisdiction is imputed to the prosecution. The defendant also cited case law which holds that failure to produce a defendant can be chargeable to the People. Unlike those cases, however, this is not a situation where a warrant was erroneously issued when an incarcerated defendant failed to appear. Here the defendant's attorney knew before the appearance date that the defendant had been rearrested and was incarcerated. See People v. Anderson, 66 NY2d 529 (1985).
It is the responsibility of the Department of Correction to produce a defendant for court when they are ordered to do so. In this case, the court issued such an order as soon as it became aware of defendant's incarceration. Unlike the facts in the cases cited by the defense, the defendant in the case before us had just been arrested less than two weeks before the court date and the People had not failed to make diligent efforts to locate her. In the matter before this court, the People are likely to have been able to locate the defendant had they known to look for her.
The People are not prevented from announcing ready when a defendant is incarcerated, as long as the proper filings are made and communicated to the defense. In this case, the People reduced the charges and filed corroboration in open court and communicated their readiness to the defendant's attorney, who knew his client's location and was able to contact him.
As such, the court does not find the People's claim of readiness to be illusory. To paraphrase the court in People v. Escoto, 121 Misc 2d 957, 964-65 (1983), the defendant, by his own act of being unavailable, cannot convert the statute (CPL § 30.30) from being "a shield into a sword".
The fact that a defendant does not attend a scheduled court appearance due to her recent incarceration in another jurisdiction, does not prevent the People from reducing the charges against her, converting the complaint to an information and filing a statement of readiness for trial. The People are required to use due diligence to locate a defendant when They become aware that she is missing and to secure her appearance on the next scheduled court date. This responsibility does not create an obligation to keep track of the current whereabouts of all defendants who are released on bail.
CONCLUSION
Based on the foregoing analysis and chronology, the Court finds 163 days chargeable to the People's six month speedy trial limit. Accordingly, defendant's motion to dismiss on speedy trial grounds (CPL 30.30) must be denied and the matter continues for trial.
This constitutes the Decision and Order of the Court.