Opinion
No. 2014BX054120.
11-18-2015
The PEOPLE of the State of New York, v. Yamil DeJESUS and Wanda Laboy, Defendants.
Office of Robert T. Johnson, District Attorney, Bronx County by Addisa Gabbidon, Assistant District Attorney, for the People. Legal Aid Society by Lauren Roberts, Esq., for Defendant DeJesus. Howard Levine, Esq., for Defendant Laboy.
Office of Robert T. Johnson, District Attorney, Bronx County by Addisa Gabbidon, Assistant District Attorney, for the People.
Legal Aid Society by Lauren Roberts, Esq., for Defendant DeJesus.
Howard Levine, Esq., for Defendant Laboy.
DAKOTA D. RAMSEUR, J.
Defendants, Yamil DeJesus (Defendant DeJesus) and Wanda Laboy (Defendant Laboy), are charged, under separate dockets, in the same misdemeanor complaint dated October 9, 2014 with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03 ), Criminally Using Drug Paraphernalia in the Second Degree (Penal Law §§ 220.50[2], [3] ), Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[1] ) and Possession of Ammunition (A.C.10–131[i][3] ). Defendants move, separately, for an order dismissing the accusatory instrument, pursuant to CPL 170.30(1)(e) and CPL 30.30(1)(b), on the ground that they have been denied their statutory right to a speedy trial. The People oppose Defendants' motions.
In deciding the motions, the court has reviewed the court files, and the submission of the parties, including Defendant DeJesus'Affirmation dated May 1, 2015, Defendant Laboy's Affirmation dated July 6, 2015, the People's Answering Affirmations dated July 7, 2015 and August 18, 2015, as well as the minutes of the calendar calls supplied by the People on September 25, 2015.
For the reasons set forth below, Defendants' motions to dismiss the accusatory instrument pursuant to CPL 30.30 are GRANTED.
Speedy Trial
CPL 170.30(1)(e) provides that “[a]fter arraignment upon an information ... or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that ... [t]he defendant has been denied the right to a speedy trial.” Pursuant to CPL 30.30(1)(b), a motion made pursuant to CPL 170.30(1)(e) “must be granted where the people are not ready for trial within ... ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony.” Readiness for trial encompasses a communication of present readiness by the People, appearing on the trial courts records, made at a time when the People are in fact ready to proceed. (People v. Kendzia, 64 N.Y.2d 331, 337 [1985].) Once a defendant establishes the existence of a delay in excess of ninety days, the burden is on the People to show that time is excludable. (People v. Santos, 68 N.Y.2d 859, 861 [1986] ; People v. Berkowitz, 50 N.Y.2d 333, 349 [1980].)
CPL 30.30(3)(a) provides that “[s]ubdivision one and two [of CPL 30.30 ] do not apply to a criminal action wherein the defendant is accused of an offense defined in sections 125.10, 125.15, 125.20, 125.25, 125.26, and 125.27 of the penal law.”
Contentions
Defendant DeJesus contends that the entire period of time between the commencement of the instant action on October 9, 2014, when he was arraigned, and the calendar call on March 17, 2015, when the case was adjourned for decision on the instant motion, is chargeable to the People as the People were not ready and indicated—on two subsequent consecutive adjournments—that they would file a statement of readiness if they became ready. In sum, Defendant DeJesus contends that a total of 159 days of chargeable time has elapsed since the commencement of the action.
Defendant Laboy contends that the entire period of time between the commencement of the instant action on October 9, 2014, when she was arraigned, and the calendar call on May 15, 2015, when the case was adjourned for a second time for motion practice, is chargeable to the People because the People were not truly ready as they had yet to convert the complaint into an information. In sum, Defendant Laboy contends that a total of 167 days of chargeable time has elapsed since the commencement of the action.
Defense counsel for Defendant Laboy objected to the initial adjournment on March 17, 2015 for motion practice pursuant to CPL 30 .30. As such, Defense counsel argues that the period of time between March 17, 2015 and May 15, 2015 should be charged to the People.
The People contend that at each defendant's arraignment on October 9, 2014 the People stated ready as to counts one through four and not ready as to count five of the complaint as they were in need of a ballistics report “to convert count five.” The People further acknowledge that they were unable to convert count five of the complaint at the subsequent adjournments “due to lack of the ballistics report.” In sum, the People contend that “zero (0) days ” are chargeable as to counts one through four and concede that CPL 30.30 time has expired as to count five. The People provide no legal arguments nor cite case law in support of their contention.
Although the Court provided the People with an opportunity to supplement their Answering Affirmations, the People opted not to supplement their papers despite the fact that each defendant's argument and posture regarding CPL 30.30 is distinct in that the People announced ready as to Defendant DeJesus and not ready as to Defendant Laboy.
Procedural History
A review of the court files and the minutes of the proceedings confirm that on October 9, 2014, at Defendant DeJesus' arraignment, the People did in fact announce ready as to counts one through four and not ready as to count five of the misdemeanor complaint. However, contrary to the People's contention, at Defendant Laboy's arraignment, the People did not announce ready. Rather, the People announced that they were “converted” as to counts one through four. A review of the court files also confirms Defendant DeJesus' contention that at the next two adjournments following his arraignment, November 3, 2014 and December 18, 2014, the People requested time to file a statement of readiness yet failed to file such statements. Additionally, the court files reveal that at the adjournment on February 5, 2015, the People requested that both cases be adjourned to March 17, 2015 as they had not yet converted count five. The court files further reveal that at the adjournment on March 17, 2015, the People acknowledged that they had yet to fully convert the complaint. As such, the court provided the parties with a schedule and adjourned the matters for decision on the instant motion.
The remaining adjournments were for the purpose of allowing both defense counsel and the People additional time to file their respective motion papers (including the additional time the People requested to submit minutes of the proceedings), and time in which the motion was under consideration by the court.
Discussion
The criminal action against Defendant Dejesus and Defendant Laboy commenced on October 9, 2014 with the filing of the misdemeanor complaint in which the top count is a Class A misdemeanor punishable by a sentence of imprisonment not to exceed one year. As such, as to each docket, the People had ninety days from October 9, 2014 in which to be ready for trial, minus any excludable time. (See CPL 30.30[1][b] ; [4]; People v. Cortes, 80 N.Y.2d 201, 208 [1992].) Both defendants have satisfied their burden of establishing a delay in excess of the statutory period. (See People v. Santos, 68 N.Y.2d 859, 861 [1986].) Thus, the burden shifts to the People to show that time is excludable. (Id. )
I. Defendant DeJesus (Docket No. 2014BX054120)
This court is cognizant of the well-settled principle that a valid information is a prerequisite to trial readiness. (See People v. Colon, 59 N.Y.2d 921 [1983] ; see generally People v. Worley, 66 N.Y.2d 583 [1985].) Absent a waiver of his right to be prosecuted by an information, a defendant cannot be tried on a misdemeanor complaint. (See 170.65[1], [3]; People v. Weinberg, 34 N.Y.2d 429, 431 [1974].) Although the accusatory instrument upon which the People stated ready was—and remains—a misdemeanor complaint that has yet to be “fully converted” into an information (see CPL 170.65[1] ; 100.40; 100.15), the Appellate Term, First Department has emphasized that “speedy trial analysis must, as a matter of course, often involve distinct considerations with respect to individual counts of a single accusatory instrument.” (People v. Ausby, 46 Misc.2d 126, 259 N.Y.S.2d 54 [A], 2014 N.Y. Slip Op 51763[U], *1 [App Term, 1st Dept 2014], lv denied 24 N.Y.3d 1218 [2015] ; People v. Doe, 46 Misc.3d 140[A], 2015 N.Y. Slip Op 50135[U], *1 [App Term, 1st Dept 2015]; People v. Naim, 46 Misc.3d 150[A], 2015 N.Y. Slip Op 50270 [U], *1 [App Term, 1st Dept 2015]; People v. Cates, 48 Misc.3d 135[A], 2015 N.Y. Slip Op 51100[U], *1 [App Term, 1st Dept 2015]; People v. Proscia, 49 Misc.3d 127[A], 2015 N.Y. Slip Op 51373[U], *1 [App Term, 1st Dept 2015]; People v. Correa, 49 Misc.3d 127[A], 2015 N.Y. Slip Op 51378[U], *1 [App Term, 1st Dept 2015].) As this court is bound by the Appellate Term, First Department's holdings, this court must conduct a distinct speedy trial analysis with respect to counts one through four, for which the People announced ready, and count five, for which the People have never answered ready.
A. Counts 1–4
With respect to counts one through four, the 25 day period between October 9, 2014 and November 3, 2014 is not chargeable to the People as the People's statement of readiness on October 9, 2014 was effective to stop the speedy clock “inasmuch as the counts of the accusatory instrument pertaining to these charges were deemed' converted to an information on that date ... and no basis is shown to conclude that the People were not then actually ready to proceed on the converted charge[s].” (Correa, 2015 N.Y. Slip Op 51378[U], *1, citing People v. Kendzia, 64 N.Y.2d 331, 337 [1985] ; Ausby, 2014 N.Y. Slip Op 51763[U], *1; Doe, 2015 N.Y. Slip Op 50135[U], *1; Naim, 2015 N.Y. Slip Op 50270[U], *1; Cates, 2015 N.Y. Slip Op 51100[U], *1; Proscia, 2015 N.Y. Slip Op 51373[U], *1). “That the accusatory instrument may have contained another count which had not been timely converted did not signify a lack of readiness to proceed on the properly converted counts, concerning which the People were technically positioned' to go to trial.” (Correa, 2015 N.Y. Slip Op 51378[U], *1, quoting People v. Terry, 225 A.D.2d 306, 307, 639 N.Y.S.2d 3 [1st Dept 1996], lv denied 88 N.Y. 886 [1996]; Ausby, 2014 N.Y. Slip Op 51763[U], *1; Doe, 2015 N.Y. Slip Op 50135[U], *1; Naim, 2015 N.Y. Slip Op 50270[U], *1; Cates, 2015 N.Y. Slip Op 51100 [U], *1; Proscia, 2015 N.Y. Slip Op 51373[U], *1). Thus, no time is chargeable to the People for the period between October 9, 2014 and November 3, 2014.
A different result follows, however, as to the remaining adjournments: The 134 day period between November 3, 2014 and March 17, 2015 is chargeable to the People. A review of the record reveals that the People sought each adjournment therein in order to obtain a valid information upon which the Defendant could be brought to trial on the remaining unconverted count. Although the People do not make any arguments in support of their contention that no time is chargeable with respect to counts one through four, implicit in their assertion is the assumption that, in answering ready as to counts one through four at Defendant's arraignment, the People effectively stopped the speedy trial clock and no additional inquiry need be made as to the reason for any subsequent adjournments occurring in this matter. Such an assumption, however, is belied by the significant case law that exists in the area of postreadiness delays. (See People v. Anderson, 66 N.Y.2d 529 [1995] ; People v. Cortes, 80 N.Y.2d 201 [1992] ; People v. Stirrup, 91 N.Y.2d 434 [1998] ; People ex rel. Sykes on Behalf of Rodriguez v. Mitchell, 184 A.D.2d 466 [1992] ; People v. Liotta, 79 N.Y.2d 841 [1992] ; People v. Cajigas, 224 A.D.2d 370, 638 N.Y.S.2d 458 [1st Dept 1996] ; People v. McKenna, 76 N.Y.2d 59 [1990] ; People v. Collins, 82 N.Y.2d 177 [1993].)
In People v. Anderson (66 N.Y.2d 529 [1995] ), the Court of Appeals made clear that the inquiry into whether the People have satisfied their CPL 30.30 obligation does not end with the People's announcement of readiness. Some postreadiness delays may be chargeable to the People. (Id. ) To that end, the Court of Appeals noted:
“[CPL 30.30 ] is to be interpreted in light of its purposes and legislative history, but also so as to harmonize its various provisions ... So interpreted it is clear that our holding in People v. Giordano, [ (56 N.Y.2d 524, 525 [1982] ) ], that when the District Attorney had announced his readiness on the record he had satisfied his obligation under CPL 30.30' is read too broadly if taken to mean that no delay on the part of the People occurring after announcement of readiness is to be counted against them in determining whether the readiness requirements of the section have been met ... The refusal to read Giordano so broadly follows also from CPL 30.30(3)(b), for its wording makes clear beyond dispute that, notwithstanding that the People have answered ready for trial within the statutory time limit, a postreadiness motion to dismiss may be made.”
CPL 30.30(3)(b) provides that “[a] motion made pursuant to subdivisions one or two upon expiration of the specified period may be denied where the people are not ready for trial if the people were ready for trial prior to the expiration of the specified period and their present unreadiness is due to some exceptional fact or circumstance, including, but not limited to, the sudden unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.”
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(Anderson, 66 N.Y.2d at 535, 498 N.Y.S.2d 119, 488 N.E.2d 1231 ).
The Court of Appeals further held that “[a] further implication of [CPL 30.30(3)(b) ] is that with respect to postreadiness delay it is the People's delay alone that is to be considered except where that delay directly results from' action taken by the Defendant within the meaning of subdivisions 4(a), 4(b), 4(c) or 4(e), or is occasioned by exceptional circumstances arising out of defendant's action within the meaning of subdivision 4(g), for otherwise the causal relationship required by those subdivisions is not present.” (Id. at 536, 498 N.Y.S.2d 119, 488 N.E.2d 1231 ).
Thus, based on Anderson, “[a]n initial declaration of readiness does not end the People's continuing obligation to be ready for trial, or permanently deprive a defendant of his right to move for speedy trial relief.” (People ex rel. Sykes on Behalf of Rodriguez v. Mitchell, 184 A.D.2d 466, 468, 586 N.Y.S.2d 937 [1st Dept 1992].) “Subsequent requests for delay [by the People], if not excludable under CPL 30.30(4), are indeed chargeable to the People.” (Id., citing People v. Liotta, 79 N.Y.2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82 ; People v. McKenna, 76 N.Y.2d 59, 556 N.Y.S.2d 514, 555 N.E.2d 911 ; People v. Anderson, 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231 ). As such, “[w]hether the People have satisfied [their] obligation [under CPL 30.30 ] is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion.” (People v. Cortes, 80 N.Y.2d 201, 208 [1992].) “Since there were extensive pre- and postreadiness delays in [the defendant's prosecution], an analysis of the causes of the delay and the availability of the statutory exclusions is crucial.” (Cortes, 80 N.Y.2d at 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 ).
There can be no doubt that each of the adjournments occurring after the People announced ready on October 9, 2014 were granted at the People's request and are thus delays occasioned by the People. (Cf. People v. Dushain, 247 A.D.2d 234, 669 N.Y.S.2d 30 [1st Dept 1998], lv denied 91 N.Y.2d 1007 [1998] ) (reversing trial court's order granting defendant's motion to dismiss the accusatory instrument pursuant to CPL 30.30 upon finding that most of the adjournments at issue were requested or otherwise caused by the defense). Even if this court interprets the People's requests on November 3, 2014 and December 18, 2014 to file a statement of readiness as requests relating only to the unconverted count, such an interpretation does not save the People from being charged for the delay. Taking such interpretation to its logical conclusion, postreadiness delays occasioned by the People would only be chargeable to the People, then, in instances where the People announce ready on a wholly converted misdemeanor complaint, or an information, and not in instances such as here where the accusatory instrument is “partially” converted. Such application of the speedy trial principles, however, would run afoul of the CPL 30.30 requirement that People be ready for trial within the periods prescribed by the speedy trial statute. There is no interpretation of the statute which would warrant such differing treatment. Here, the People could no longer be said to be “technically positioned” to go to trial on the converted counts where they request to file a statement of readiness. Thus, they did not maintain their readiness. (See People v. Quiles, 179 Misc.2d 59, 683 N.Y.S.2d 775 [Crim Ct, N.Y. County 1998], 1998 Slip Op 98684) (holding that the People declared their unwillingness to proceed to trial by requesting an adjournment to corroborate the unconverted counts.) “This is not to say that by answering ready prior to the expiration of the applicable period stated in subdivision 1 or subdivision 2 [of CPL 30.30 ] the People forfeit[ed] their right to the time remaining.” (Anderson, 66 N.Y.2d at 536–537, 498 N.Y.S.2d 119, 488 N.E.2d 1231 ). The People were indeed entitled to use the full statutory period to accomplish their intended task. But they were entitled to ninety days and nothing more. (See CPL 30.30[1][b].)
“Although the defendant ordinarily has the burden of showing that any postreadiness adjournments occurred under circumstances that should be charged to the People ... it is the People's burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged.” (People v. Cortes, 80 N.Y.2d 201, 215–16 [1992], citing People v. Liotta, 79 N.Y.2d 841, 843 [1992] ; People v. Berkowitz, 50 N.Y.2d 333 [1980].) Having failed to show that any postreadiness delay is either excludable under a provision of CPL 30.30(4) or due to some exceptional circumstance (see CPL 30.30[3][b] ), time is chargeable to the People. Although, in a postreadiness posture, the People are generally charged only with the amount of time requested (see People ex rel. Sykes on Behalf of Rodriguez v. Mitchell, 184 A.D.2d 466, 586 N.Y.S.2d 937 [1st Dept 1992] ), here, the People advised the court, on November 4, 2014 and December 18, 2014, that the People intended to file a statement of readiness off-calendar. Yet, no such statement of readiness was ever filed. Thus, the entire 45 day period between November 3, 2014 and December 18, 2014 is chargeable to the People as postreadiness delay attributable to the People. (Id. ) Similarly, the entire 49 day period between December 18, 2014 and February 5, 2015 is chargeable to the People. (Id. ) As the People specifically requested that the case be adjourned from February 5, 2015 to March 17, 2015, the entire 40 day period therein is also chargeable to the People. (See People v. Cajigas, 224 A.D.2d 370, 638 N.Y.S.2d 458 [1st Dept 1996].)
B. Count 5
As to count five of the misdemeanor complaint, to date, it remains unconverted. The People have never announced ready. Thus, the entire period between October 9, 2014 and March
17, 2015 is chargeable to the People as pre-readiness delay. (See Colon, 59 N.Y.2d at 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 ).
Based on the foregoing, with respect to Defendant DeJesus, a total of 134 days of chargeable time has elapsed as to counts one through four, and 159 days of chargeable time has elapsed as to counts five.
II. Defendant Laboy (Docket No. 2014BX054121)
Unlike with Defendant DeJesus, the People never declared their readiness for trial as to Defendant Laboy. Notably, although the People contend that they announced ready on October 9, 2014 at Defendant Laboy's arraignment, the minutes of the proceeding—which the People themselves supplied to the court—indicate the contrary. The People merely announced that they were “converted” as to counts one through four. However, it is well established that “the People must communicate readiness for trial to the court on the record when ready to proceed.” (Kendzia, 64 N.Y.2d at 337, 486 N.Y.S.2d 888, 476 N.E.2d 287, quoting People v. Hamilton, 46 N.Y.2d 932, 933 [1979] ) (emphasis added). Here, there is no record that the People ever announced ready. Nor have the People shown that any time is excludable. Thus, the entire period of time between October 9, 2014 and March 17, 2015 is chargeable to the People as prereadiness delay. (Id. )
Based on the foregoing, with respect to Defendant Laboy, a total of 159 days of chargeable time has elapsed as to all counts.
Conclusion
More than ninety days of chargeable time has elapsed as to each count of the criminal action against Defendant DeJesus and Defendant Laboy. Where, as here, a lesser sanction is unavailable for the People's failure to comply with their CPL 30.30 obligation, “[postreadiness] dismissal is not only permissible but is required if the purpose of the section is to be carried out.” (People v. Anderson, 66 N.Y.2d 529, 535 [1995].)
Accordingly, Defendants' motions to dismiss the accusatory instrument pursuant to CPL 30.30 are granted.
This is the Decision and Order of the Court.