Opinion
No. 2013KN082115.
05-08-2014
The PEOPLE of the State of New York v. Kenneth HAM, Defendant.
ADA Dena–Kay Martin, for the People. Susan Millor, Brooklyn Defender Services, for the Defense.
ADA Dena–Kay Martin, for the People.
Susan Millor, Brooklyn Defender Services, for the Defense.
Opinion
JOANNE D. QUIÑONES, J.
Defendant is charged with Petit Larceny, in violation of Penal Law (P.L.) section 155.25, Criminal Possession of Stolen Property in the Fifth Degree, in violation of P.L. section 165.40, Menacing in the Third Degree, in violation of P.L. section 120.15, and Harassment in the Second Degree, in violation of P.L. section 240.26(1). Defendant now moves for dismissal of the Petit Larceny and Criminal Possession of Stolen Property charges on the grounds that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law (C.P.L.) section 30.30.
In the first time and place of occurrence (TPO), the accusatory instrument charges the defendant with the offenses of Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree. The information alleges, in relevant part, that on August 8, 2013, at Bloom Café, located at 996 Broadway, in Kings County:
The defendant is only moving to dismiss the two offenses charged in the first TPO.
The deponent [Policer Officer (P.O.) Juned Khan] is informed by Rebecca Thybulle that informant is employed as a manager at ... Bloom Café, and that as such informant is [the] custodian of video footage of said location, kept in the regular course of business, that informant is [the] custodian of employment, schedule and receipt records at said location, kept in the regular course of business, and that defendant was an employee of said location on [August 8, 2013].
The deponent is further informed by the informant that in the regular course of business, employees place revenue of the above mentioned location into envelopes and place said envelopes into open slots of a safe within the above mentioned location.
The deponent is further informed by the informant that informant reviewed receipts of revenue of the above mentioned location at the first above mentioned date, compared said receipts with United States currency in the above mentioned safe and observed a shortage of United States currency in said safe, specifically One Hundred Twenty Two Dollars and Thirty Five Cents United States currency.
The deponent is further informed by the informant that the informant reviewed video footage depicting the first above mentioned time and place and observed said video footage depict defendant remove an envelope from a slot in the above mentioned safe which had not been entirely placed into said safe from said slot and place said envelope into defendant's pants pocket.
The deponent is further informed by the informant that informant is the custodian of the above mentioned safe and sum of United States currency and defendant did not have permission or authority to take, possess, or otherwise exercise dominion or control over said sum of United States currency and to remove envelopes from the above mentioned safe.
On or about February 26, 2013, the People filed and served a Statement of Readiness (SOR) together with a superseding information. The new instrument added the following paragraph:
“The deponent [P.O. Khan] is further informed by informant [Ms. Thybulle] that the above-mentioned video surveillance footage was made in the ordinary course of business, and it was the regular course of the above-mentioned location to make such records at or near the time of the matter recorded.”
The court notes that there is no supporting deposition signed by the informant to support this new allegation.
PARTIES' CONTENTIONS
Defendant's speedy trial motion is based on the premise that at the court appearance on January 7, 2014, “the court [then presiding] found that the charges of Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree, from the first TPO were unconverted” (Defendant's Affirmation, p 4, ¶ 8). The defendant maintains that because the People were not ready on the first TPO, all the time from arraignment on November 6, 2013, through the time the motion was served and filed on or about February 26, 2014, is chargeable to the People for a period of “at least 111 days” (id. ).
The defendant does not argue that the theory of partial conversion raised by the People at the court appearance on January 7, 2014, does not apply; nor does the defendant allege that the People's SOR is ineffective as to the offenses charged in the second TPO.
The People counter on procedural grounds that the defendant's motion is untimely. They cite People v. Odoms, 143 Misc.2d 503, 505 (Crim Ct, N.Y. County 1989), which held that “[a] defendant may not lie silently in wait,' while CPL 30.30 time expires, raising no objections to the sufficiency of an information” (People's Memorandum of Law, p 7).
On the merits, the People maintain that the factual allegations contained in the original complaint are sufficient to establish the charges of Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree and that the supporting deposition of the informant, filed and served on November 29, 2013, together with an SOR, properly converted the complaint into an information. They further aver that the original complaint lays a proper foundation pursuant to Civil Practice Law and Rules (C.P.L.R.) section 4518(a) to permit the reliance upon the surveillance video under a business record rule.
DISCUSSION
Before turning to defendant's speedy trial motion, the court will first address the issues of conversion and facial sufficiency.
Conversion
At the court appearance on January 7, 2014, the defense argued that, with respect to the first TPO, “in order for the People to fully convert this complaint, we need the video footage seeing as those observations were not based on her personal knowledge ... [and that] until we have a video footage there is still hearsay” (Transcript of Minutes [Tr.] of 1/7/2014, p 2, line 18–p 3, line 2). After a discussion on the record, the court found that the first TPO was not converted.
At the outset, this court notes that it is not bound by calendar notations or interim markings made by other judges as such a determination is to be made when a defendant moves to dismiss on speedy trial grounds (People v. Berkowitz, 50 N.Y.2d 333, 348–349 [1980];People v. Gordon, 31 Misc.3d 1231 [A] [Sup Ct, Bronx County 2011]; People v. Ashkinadze, 167 Misc.2d 80, 83 [Crim Ct, Kings County 1995] ). The determination as to whether the complaint was sufficiently converted on that date is directly relevant to the merits of this motion, and the law requires that specific grounds for dismissal be made in writing on notice to the People (see C.P.L. §§ 210.45 ; 170.45). Moreover, the “law of the case doctrine” is applicable only in those instances where the parties have had an opportunity to fully litigate the issue in controversy, and questions of law have been “squarely decided” (People v. Evans, 94 N.Y.2d 499, 502 [2000];People v. Lambert, 2002 WL 1769931 [Crim Ct, N.Y. County 2002] ). An issue is not considered fully litigated until it has been addressed in written submissions, with notice and opportunity for response (People v. Portorreal, 28 Misc.3d 388, 392 n3 [Crim Ct, Queens County 2010] ; People v. Grant, 42 Misc.3d 1236[A], *4 n2 [Crim Ct, Kings County 2014] ).
Regarding the People's procedural argument that the defendant's motion is untimely, the court finds that the People were on timely notice of the defendant's objections to the conversion of the first two charges relating to the first TPO as the issues were raised at the court appearance on January 7, 2014, and again on February 24, 2014. Further, it appears that in response to defense counsel's argument and the court's ruling on January 7, 2014, the People filed and served a superseding accusatory instrument attempting to lay a further foundation for reliance on the videotape. Therefore, the court finds that the defendant did not “lie silently in wait,” before filing the instant speedy trial motion.With respect to whether the video observations made by the informant constitute hearsay, the court finds that the surveillance video, and specifically the informant's sworn statement that she viewed the surveillance video and that it showed the defendant remove an envelope from the store's safe and put it in his pants pocket, is not hearsay and is sufficient to convert the complaint.
This court finds convincing the line of cases which hold that a complainant's statement of what he or she viewed on a videotape is not hearsay (see Lambert, supra at *3 [“one who personally observes the content of a videotape can give sworn testimony about his observations without violating the hearsay rule”]; People v. Patten, 32 Misc.3d 440, 444 [City Court, Long Beach New York 2011] [“observations of a videotape are not hearsay”]; see also People v. West, 41 Misc.3d 542 [Crim Ct, Bronx County 2013] [allegations in the supporting deposition that complainant saw the defendant take $100.00 from the register were sufficient where those statements were based on deponent's review of a videotape]; People v. Giarraputo, 37 Misc.3d 486, 487 [Crim Ct, Richmond County 2012] [“It is axiomatic that personal observations of a condition, event, incident or tangible item made by a witness are not hearsay”] ).
Hearsay is defined as “testimony that is given by a witness who relates not what he or she knows personally, but what others have said and is therefore dependent on the credibility of someone other than the witness' “ (Giarraputo, 37 Misc.3d at 487,citing Black's Law Dictionary [7th ed 1999] ). That is to say, that while the audio component of a videotape might well fall under the hearsay rule, and may be found inadmissible absent a hearsay exception, the visual component of a videotape is not usually hearsay (see Patten, 32 Misc.3d at 444, n1 ). Therefore, since the complaint here refers to the personal observations made by the informant-manager based on her review of a videotape, they do not constitute hearsay.
At trial, where the burden of proof is much higher than that required at the pleading stage, the proper foundation will have to be laid for the admissibility of the videotape, including chain of custody, and the “best evidence” rule will have to be considered (see, e.g., People v. Patterson, 93 N.Y.2d 80, 84 [1999];People v. Orlando, 61 AD3d 1001, 1002 [2nd Dept 2009]; Lambert, 2002 WL 1769931 ). However, while it is “true, [that] at trial, ... testimony [about videotape observations] might not be the best evidence' of the facts sought to be proved, ... a hearsay' objection would not lie” (Lambert, 2002 WL 1769931 at *3).
Similarly, the allegations in the complaint—that the informant-manager personally compared revenue receipts with the currency in the safe and found a shortage—are not hearsay. “Hearsay is a statement not made in the course of a trial in which it is offered ... if it is offered for the truth of the fact asserted in the statement' “ (People v. Huertas, 75 N.Y.2d 487 [1990] [internal citation omitted] ). These allegations are the personal observations and actions of the informant; they are not being offered to establish that there was in fact a shortage in the amount of $122.35.To the extent that other courts of concurrent jurisdiction have found that a deponent's observations of video are hearsay and are not sufficient to convert an accusatory instrument, this court finds those cases unpersuasive and is not bound by those rulings.
Based on the foregoing, this court finds that the informant's reliance on a videotape and on a comparison of the cash register receipts to the currency in the safe is not hearsay, and the charges of P.L. sections155.25 and 165.40 are sufficiently converted.
Although a second supporting deposition from the informant corroborating the additional paragraph in the superseding instrument was not filed and served, the court finds that the new language purporting to lay a proper foundation for reliance on the videotape is superfluous and not required to convert the complaint (see West, 41 Misc.3d at 545,citing Patten, 32 Misc.3d at 546 [“an evidentiary foundation need not be laid for the purposes of the supporting deposition”] ).
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Facial Sufficiency
A facially sufficient accusatory instrument alleges evidentiary facts supporting or tending to support the charges which provide reasonable cause to believe that the defendant committed the offense charged and contains non-hearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof (C.P.L. §§ 100.15[3], 100.40 [1 ][b], [c]; see also People v. Alejandro, 70 N.Y.2d 133 [1987] ).
In determining the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorable to the People (People v. Contes, 60 N.Y.2d 620, 621 [1983] ). “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 N.Y.2d 354, 360 [2000] ).
A defendant is guilty of Petit Larceny when he steals property (P .L. § 155.25). A person is guilty of Criminal Possession of Stolen Property in the Fifth Degree “when he knowingly possesses stolen property, with the intent to benefit himself or a person other than the owner thereof or to impede the recovery by an owner thereof.” Based on the discussion above, the court finds that the factual allegations in the accusatory instrument are sufficient to support those charges.
Speedy Trial
The court will now turn to defendant's speedy trial motion.
In the first TPO, the defendant is charged with two class A misdemeanors (see P.L. §§ 155.25, 165.40). Class A misdemeanors are punishable by a sentence of imprisonment not to exceed one year (P.L. § 70.15[1] ). Where a defendant is charged with a misdemeanor punishable by a sentence of imprisonment of more than three months, a speedy trial motion must be granted where the People are not ready for trial within 90 days of commencement of the criminal action (C.P .L. § 30.30[1][b] ).The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute, in this case 90 days (People v. Santos, 68 N.Y.2d 859, 861 [1986] ). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss (id. ).
Based on a review of the official court file and the submissions of the parties, the court finds as follows:
November 6, 2013—January 7, 201423 days
On November 6, 2013, defendant was arraigned on a misdemeanor complaint and released on his own recognizance. The matter was adjourned to January 7, 2014, for conversion.On November 29, 2013, the People filed with the court and served on defense counsel a supporting deposition accompanied by an SOR.
The People are ready for trial when they communicate their actual readiness in open court or file with the court and serve on defense counsel a certificate of actual readiness (see People v. Kendzia, 64 N.Y.2d 331, 337 [1985] ). The People's act in filing and serving an SOR served to toll the speedy trial clock for the remainder of the adjournment (People v. Stirrup, 91 N.Y.2d 434, 440 [1998] ).
As discussed above, this court finds that the supporting deposition served and filed on November 29, 2013, converted the complaint and thus the People's SOR filed together with the supporting deposition was valid and effectively tolled the speedy trial clock. The People are chargeable, however, with the 23 days preceding their declaration of readiness.
January 7, 2014—February 24, 20140 days
On January 7, 2014, the People announced ready (Tr. of 1/7/2014, p 2, line 11). The court set a date of January 31, 2014, for the People to provide discovery by stipulation (DBS) and the matter was adjourned to February 24, 2014, for hearings and trial.
An adjournment for discovery is excludable (C.P.L. § 30.30[4][a] ; People v. Dorilas, 19 Misc.3d 75, 76–77 [App Term, 2nd Dept 2008] [time attributable to DBS is excludable]; People v. Khachiyan, 194 Misc.2d 161, 166 [Crim Ct, Kings County 2002] [An adjournment for DBS which “is in lieu of motion practice and discovery practice in Kings County” is excludable] ).
Additionally, the People are entitled to a reasonable adjournment to prepare for hearings and trial once hearings are ordered (see People v. Greene, 223 A.D.2d 474 [1st Dept], lv den 88 N.Y.2d 879 [1996];People v. Hernandez, 268 A.D.2d 344 [1st Dept], lv den 95 N.Y.2d 253 [2000]; People v. Lucas, 25 Misc.3d 1213[A], [Crim Ct, Kings County 2009] ).
February 24, 2014—February 26, 20141 day
In their response papers, the People submit that they answered ready on February 24, 2014 (People's Memo, p 6). Defense submits and the court action sheet reflects that the People answered not ready, stating that the assigned Assistant District Attorney was out sick, and requested an adjournment of one (1) day. The matter was adjourned to February 26, 2014, for hearings and trial.
Because the People had previously answered ready on the case, the matter was in a state of post-readiness. When a case is in a post-readiness posture, adjournments that extend beyond the delay requested by the People are not chargeable to the People (People v.. Bruno, 300 A.D.2d 93, 95 [1st Dept 2002], lv den 100 N.Y.2d 641 [2003];People v. Dushain, 247 A.D.2d 234, 236 [1st Dept], app den 91 N.Y.2d 1007 [1998] ). The People are thus only charged with the time they requested.
February 26, 2014—May 8, 201410 days
On February 26, 2014, the People announced ready for trial and defendant filed and served the instant speedy trial motion. The court set a date of March 14, 2014, for the People to file and serve their response, and adjourned the matter to May 8, 2014, for decision.
On or about March 18, 2014, the People who had not complied with the original deadline set by the court, contacted the court's court attorney and requested additional time to submit a response indicating that they had to obtain court minutes.
The People filed and served their response on March 24, 2014. The court notes that the People's response neither included a copy of any court minutes, nor referenced any court minutes.
As a general rule, defendant's filing of a speedy trial motion tolls the speedy trial clock, and adjournments for motion practice are generally excluded for speedy trial purposes (C.P.L. § 30.30[4][a] ; People v. Worley, 66 N.Y.2d 523, 527 [1985] ). However, where the People fail to abide by a court imposed deadline for service of response papers, the People are properly charged for the delay (People v. Delosanto, 307 A.D.2d 298, 299 [2nd Dept], lv den 100 N.Y.2d 641 [2003];People v. Gonzalez, 266 A.D.2d 562, 563 [2nd Dept 1999], lv den 94 N.Y.2d 920 [2000];People v. Commack, 194 A.D.2d 619, 620 [2nd Dept 1993] ).
The People's delay may be excused, however, where there is a legitimate reason for the delay and the delay is not unreasonable (People v. Kukla, 27 Misc.3d 1221[A] [Crim Ct, Queens County 2010] [extension of time to respond reasonable where the issues are complex or where timely-ordered and necessary minutes are not yet available] ). However, as the People did not indicate to this court when the minutes were requested and, in fact, did not request any additional time prior to the date their opposition was due, this ten delay is charged to the People.
CONCLUSION
In total, the People are charged with 34 days, which does not exceed the allowable time set forth in C.P.L. section 30.30(1)(b). Accordingly, the defendant's motion to dismiss the charges of Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree for lack of a speedy trial is denied.
This constitutes the decision and order of this Court.