Opinion
No. 2014BX050682.
05-04-2015
The PEOPLE of the State of New York v. Raymond JACKSON, Defendant.
Brendan O'Meara, Esq., O'Meara Law Office, Bronx, Defense Counsel. Maeve E. Huggins, Esq., Assistant District Attorney, Bronx County District Attorney Office, Bronx, for The People.
Brendan O'Meara, Esq., O'Meara Law Office, Bronx, Defense Counsel.
Maeve E. Huggins, Esq., Assistant District Attorney, Bronx County District Attorney Office, Bronx, for The People.
Opinion
JEANETTE RODRIGUEZ–MORICK, J.
Defendant Raymond Jackson (“Defendant”) stands charged with assault in the third degree (Penal Law § 120.00 ), a class A misdemeanor, and other related charges. He moves to dismiss the charges on speedy-trial grounds, pursuant to CPL 170.30(1)(e) and 30 .30(1)(b).
For the reasons that follow, Defendant's motion is held in abeyance pending the People's compliance with this court's order (see infra ) directing the People to file an affirmation detailing the efforts they took to produce Defendant for trial on October 29, 2014.
Section 30.30 (1)(b) of the Criminal Procedure Law, which applies here, requires that the People be ready for trial within 90 days from the commencement of a criminal action. A defendant is otherwise entitled to dismissal (see CPL 170.30[1][e] ; 30.30[1][b] ). “Ready for trial” means that the People (1) have communicated readiness to the court and the defendant; and (2) are “in fact ready to proceed” to trial (People v. Kendzia, 64 N.Y.2d 331, 336–37 [1985] ). The People are “ready to proceed” to trial when they have removed all legal impediments to the commencement of their case (People v. England, 84 N.Y.2d 1, 5 [1994] ). “The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness” (Kendzia, 64 N.Y.2d at 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 ).
Consistent with the foregoing, this court makes the following rulings concerning the relevant adjournment periods in this case:
September 21, 2014—October 10, 2014: 0 days
On September 21, 2014, Defendant was arraigned, the People stated ready and consented to a Huntley hearing, and the case was adjourned to October 10, 2014, for hearing and trial.
Zero days are chargeable from this time period.
October 10, 2014—October 29, 2014: 19 days
On October 10, 2014, the People stated not ready because the “complaining witness was represented by counsel in a pending felony matter” (Aff in Opp'n 4). Defendant did not appear because he had been rearrested on felony charges and the People failed to produce him. The case was adjourned for the People to produce Defendant. As the People concede (id. ), nineteen days are chargeable from this time period (see CPL 30.30[4][e] ; People v. Anderson, 66 N.Y.2d 529, 540 [1985] ).
October 29, 2014—December 15, 2014: Undetermined
On October 29, 2014, Defendant was not produced. The case was adjourned to December 15, 2014, for the People to produce Defendant and for hearing and trial.
The People claim, in their responsive papers, that because they had prepared an Order to Produce the Defendant on October 29, 2014, zero days are chargeable (Aff in Opp'n 4). Although it may be that “[t]he failure of the People to produce [a] defendant does not automatically require that the time be chargeable to the People” (People v. Fernandez, 39 Misc.3d 1221[A] [Sup Ct, Bronx County 2013] [internal quotation marks omitted], quoting People v. Gatling, 160 Misc.2d 886, 891, 611 N.Y.S.2d 762 [Sup Ct, N.Y. County 1994] ; see CPL 30.30[4][e] ), the government is still obligated to establish, at a minimum, that it properly followed the applicable rules, regulations, or statutes governing the process for securing the defendant's presence in court (see e.g. People v. Scott, 242 A.D.2d 478, 479, 662 N.Y.S.2d 476 [1st Dept 1997] [affirming CPL 30.30 dismissal where the People failed to “pursue statutorily prescribed methods for securing the presence” of a defendant in federal custody]; see also People v. Wojciechowski, 143 A.D.2d 164, 165, 531 N.Y.S.2d 613 [2d Dept 1988] [charging the People with delay for mistaking, in an order to produce, the jail in which the defendant was incarcerated] ).
Accordingly, because the People here failed to append the Order to Produce to their opposition papers or to otherwise detail the efforts they made to secure Defendant's presence on October 29, 2014, it cannot now be determined whether they were diligent in their efforts (see CPL 30.30[4][e] ; Anderson, 66 N.Y.2d at 540, 498 N.Y.S.2d 119, 488 N.E.2d 1231 [“Subdivision 4(e) excludes delay resulting from defendant's detention in another jurisdiction of which the District Attorney is aware provided he has been diligent in attempting to obtain defendant's return. A fortiori, therefore, due diligence must be shown if detention in the same jurisdiction is to be excluded.”] ). Even assuming that the People had, in fact, prepared an Order to Produce, and that it was timely, the court is without facts to determine whether the order contained the necessary and correct information rather than any “bureaucratic mistake” which would “bespeak[ ] a lack of diligence” (see Wojciechowski, 143 A.D.2d at 165, 531 N.Y.S.2d 613 ).
December 15, 2014—February 4, 2015: 44 days
On December 15, 2014, the People stated not ready, and the case was adjourned to February 4, 2015, for hearing and trial. In the interim, on January 28, 2015, the People filed and served a written statement of readiness off-calendar.
Forty-four days are chargeable from this time period (see Kendzia, 64 N.Y.2d at 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 [recognizing validity of written notices of readiness filed and served off-calendar] ).
February 4, 2014—March 16, 2015: 0 days
On February 4, 2015, defense counsel requested an adjournment to file the instant motion, and the case was adjourned to March 16, 2015, for decision. In the interim, on February 24, 2015, the People requested an extension to file their opposition to this motion. The court granted the People's request, and a new motion schedule was set.
Zero days are chargeable from this time period (see CPL 30.30[4][a] ).
March 16, 2015—May 7, 2015: 0 days
On March 16, 2015, the People filed and served their opposition to this motion, and the case was adjourned to May 7, 2015, for decision.
Zero days are chargeable from this time period (see id. ).
Total Days Chargeable to the People: Undetermined
Accordingly, because this motion turns on the October 29, 2014—December 15, 2014 adjournment period—for which there remains an issue of fact that the court is unable to resolve on the parties' motion papers—the People are directed to file an affirmation that includes, at the very least, a copy of the relevant Order to Produce, or that details the “reasonable efforts [made] to obtain the presence of the defendant for trial” on October 29, 2014. This affirmation shall be filed with the clerk of the court no later than May 22, 2015. Failure to comply with this order shall result in dismissal of this case.
Upon filing the affirmation, the People shall email a courtesy copy of the same to dvjudge@nycourts.gov.
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This constitutes the decision and order of the court.