Opinion
Ind. No. 70935-2021
06-01-2022
The People of the State of New York v. Anthony Chinea, Defendant.
Gabriel Reale, Assistant District Attorney, for the People Joseph Amsel, for Defendant
Unpublished Opinion
Gabriel Reale, Assistant District Attorney, for the People
Joseph Amsel, for Defendant
Karen Gopee, J.S.C.
Summary of the Court's Decision - The Defendant's Motion to Dismiss on Speedy Trial Grounds is GRANTED- 209 days chargeable
On April 10TH, this Court held defendant's motion to dismiss the Indictment pursuant to C.P.L. § 30.30(1) in abeyance and ordered a hearing to determine the validity of the People's November 15TH, 2021 Certificate of Compliance with Discovery (herein referred to as "CoC").
At the hearing on May 10TH, 2022, the defendant reiterated his challenges to the CoC, arguing that the People failed to provide: (1) the grand jury minutes; (2) the sprint report, radio runs and 911 calls, (3) co-defendant's related paperwork; and (4) information of the alleged true owner of the firearm.
The People conceded that the grand jury minutes were received on or about November 24TH, 2021, but not turned over until defense counsel specifically requested them on January 17TH, 2022. They maintain that they ordered the sprint reports, radio runs and 911 calls immediately, but received notice that none were found. They also aver that the body worn camera would reflect the police communications and should be considered in lieu of other reports. They argue that they turned over the co-defendant's statements but are not required to turn over co-defendant's other police paperwork because it is duplicative of the defendant's reports and not available to them because it was sealed by the Court.
The People rely on C.P.L. § 245.50 and § 245.80 and argue that: (1) the missing materials should not invalidate the CoC; (2) the CoC was valid when filed; (3) they exercised due diligence and acted in good faith; and that (4) the proper remedy, if any, should be sanctions, after consideration of lack of prejudice to the defendant.
The Court makes the following findings:
CERTIFICATE OF COMPLIANCE
This Court need not examine items 2, 3 or 4 in this instance since the disclosure of the grand jury minutes is essential and controlling as to whether the CoC, and subsequently the statement of readiness, were valid.
The People concede that they did not have or disclose the Grand Jury minutes when they filed their CoC or Statement of Readiness, in their written response to defendant's motion, at the hearing, and in their COC (Section 2, Grand Jury Testimony, "None at this time."). They further admit that Grand Jury stenographers are employees of the District Attorney's Office , they received the Grand Jury minutes on or about November 24TH, 2021 and that the GJ minutes were not turned over to counsel until January 17TH, 2022. They also acknowledge that no Supplemental CoC was ever filed.
C.P.L. § 245.20(1) mandates the Prosecutor "disclose to the defendant all items and information that relates to the subject matter of the case and are in the possession, custody, or control of the prosecution or persons under the prosecution's direction or control..," while C.P.L. § 245.20(1)(b) specifies that the People must disclose "all transcripts of the testimony of a person who has testified before a grand jury" prior to filing a Certificate of Compliance pursuant to C.P.L. § 245.10. The time period can be "stayed" for an additional thirty calendar days, without motion, "[i]f in the exercise of reasonable diligence and due to the limited availability of transcription resources, a transcript is unavailable for disclosure within the time period specified except that such disclosure shall be made as soon as practicable." See C.P.L. § 245.20(1)(b).
Here, no exemptions apply. The People presented witnesses before the Grand Jury and knew that their testimony was being transcribed simultaneously by a stenographer employed by their office. Thus, not only are the GJ minutes deemed to be in their possession, custody and control, but it is also deemed to be immediately available. While the Court accepts that it may take a few days for the stenographers to review the testimony, complete the transcription and provide the minutes to the Assistant District Attorney, that does not negate the People's requirement to obtain and disclose the minutes under C.P.L. § 245.20(1)(b), nor their certification requirements under C.P.L. § 245.50.
Moreover, the People concede that they were in actual possession of the Grand Jury minutes on or about November 24TH, 2021 and only turned over the minutes on January 17TH, 2022, almost 2 months after receiving them and 64 days after filing their CoC where they certified discovery was complete. This almost 2 month 'oversight' runs afoul of reasonable diligence or disclosure "as soon as practicable." Furthermore, People's timely receipt of the minutes negates any argument of limited availability of transcription services.
STATEMENT OF READINESS
C.P.L. § 245.70(2) allows for modifications of the time periods upon a good cause showing by the People. C.P.L. § 245.30 allows the People to be considered ready, without completing their discovery obligations, if the Court makes "an individualized finding of special circumstances" or if discoverable material has been lost, destroyed or otherwise unavailable despite diligent and good faith efforts reasonable under the circumstances.
Here, the People failed to ask for a modification, failed to ask for an individualized finding of special circumstances to file a Statement of Readiness and failed to explain any diligent, good faith efforts utilized to obtain the grand jury minutes prior to filing their CoC. The People "failed to put forth any argument in support of a statutory exception that would authorize its filing of a SOR" without providing the grand jury minutes. See People v. Naula, 2022 NY Slip Op 50386(U) (Sup. Ct. Qns. Co. 2022) (The Court invalidated the CoC and deemed the Statement of Readiness illusory, where the People "erroneously" affirmed compliance with discovery but failed to provide Grand Jury minutes).
As noted by the Second Department, "contrary to the People's contention, their filing of the certificate of compliance pursuant to C.P.L. § 30.30(5) could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant pursuant to C.P.L. § 245.50(1) and (3)." People ex rel. Ferro v. Brann, 197 A.D.3d 787 (2d Dept. 2021).
Accordingly, having found that the requisite good faith certification of compliance required by C.P.L. § 245.20 was lacking when the People filed their Statement of Readiness on November 17TH, 2021, the Statement of Readiness was illusory and is therefore deemed invalid.
While not binding on this Court, the William C. Donnino Practice Commentary for C.P.L. § 245.10 states that "[w]hile the statutory extension [under C.P.L. § 245.20(1)b)] may avoid sanctions for late discovery, it will not inure to the persecutor's benefit in answering "ready for trial."
SPEEDY TRIAL MOTION
Pursuant to C.P.L. § 30.30(1)(a), a motion to dismiss must be granted "where the [prosecution is] not ready for trial within... six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony." To satisfy his initial burden under C.P.L. § 30.30, the defendant need allege "only that the prosecution failed to declare readiness within the statutorily prescribed time period." People v. Luperon, 85 N.Y.2d 71, 77-78 (1995); see also People v. Drummond, 627 N.Y.S.2d 55, 57 (2d Dept. 1995).
Once the defendant has alleged that more than the statutorily prescribed time period has elapsed since the commencement of the action without a declaration of readiness by the prosecution, the prosecution bears the burden of establishing sufficient excludable delay. See C.P.L. § 30.30(4); People v. Berkowitz, 50 N.Y.2d 333, 349 (1980); People v. Santos, 68 N.Y.2d 859, 861 (1986); People v. Brown, 28 N.Y.3d 392, 403 (2016); People v. Cantoni, 140 A.D.3d 782, 784 (2d Dept. 2016); People v. Matos, 62 Misc.3d 128 (A) (App. Term 2d Dept. 2018).
The People must communicate readiness to the trial court and to defense counsel either in open court, or.by filing a statement of readiness with the clerk of the court and serving a copy of the statement on defense counsel. People v. Smith, 82 N.Y.2d 676 (1993). The People cannot "be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper" Certificate of Compliance "pursuant to" C.P.L. § 245.50(1). See C.P.L. § 245.50(3)
Both parties agree that the relevant six-month period pursuant to C.P.L. § 30.30(1)(a) is 181 days and that at least 177 days of chargeable time has accumulated between the defendant's arraignment on September 2ND, 2020 and the filing of the Statement of Readiness on November 17TH, 2021.
In addition, the 4 days between February 4TH, 2022, the deadline for People's response to defendants' timely Omnibus motion and February 8TH, 2022, the date the People filed their response, is chargeable . See People ex rel. Ferro v. Brann, 197 A.D.3d 787, 788 (2d Dept. 2021); see also People v. Delosanto, 307 A.D.2d 298, 299 (2d Dept. 2003) (Second Department noted that the Court "should have charged the People with" the period between the "court-imposed deadline to respond to one of the defendant's pretrial motions to the date that the People actually filed a response"); People v. Gonzalez, 266 A.D.2d 562 (2d Dept. 1999).
The People are further charged with 28 days, from the filing of the illusory Statement of Readiness on November 17TH, 2021 and the date that the Omnibus motion schedule was created, December 15TH, 2021. Contrary to the defendant's assertion that the entire time between November 17TH and the filing of the Statement of Readiness and January 18TH, 2022, the date the People disclosed the Grand Jury minutes should be chargeable, pre-trial motion practice is excluded from speedy trial calculation. See C.P.L. § 30.30(4)(a).
Since the chargeable time attributed to the People exceeds six months pursuant to C.P.L. § 30.30(1)(a)-to wit, a total of 209 days (177 + 4 + 28)-the defendant's motion to dismiss on speedy trial grounds is GRANTED.
This constitutes the decision and order of this Court.