Opinion
1495/12
01-10-2017
The People of the State of New York v. Joell Joyce, Defendant.
Appearing on behalf of the defendant: Barry Krinsky, Esq. 50 Court Street Suite 1206 Brooklyn, NY 11201 (718) 643-1878 Appearing on behalf of the People: Courtney Groves & Amanda Levy, Assistant District Attorneys 1 Hogan Place New York, NY 10013 (212) 335-9296
Appearing on behalf of the defendant: Barry Krinsky, Esq. 50 Court Street Suite 1206 Brooklyn, NY 11201 (718) 643-1878 Appearing on behalf of the People: Courtney Groves & Amanda Levy, Assistant District Attorneys 1 Hogan Place New York, NY 10013 (212) 335-9296 Jill Konviser, J.
By Indictment Number 1495/12, the defendant is charged with Attempted Murder in the Second Degree pursuant to Penal Law Section 110/125.25(1), a class B violent felony offense, and related charges. On June 5, 2015, the defendant filed a motion to dismiss the indictment pursuant to Criminal Procedure Law Section 30.30(1)(a). The defendant's argument is twofold; that the People should be charged with every adjournment for which they failed to produce him from federal custody, and that the People's subsequent lack of readiness rendered a Certificate of Readiness filed on January 15, 2015, illusory. After careful review of the Supreme Court file, the Court's own notes, the relevant transcripts, and the myriad papers filed by the parties, the Court ordered an evidentiary hearing. The hearing was held before this Court on October 20, 2016. Based on the particular facts and circumstances present in this case, the defendant's motion to dismiss is denied.
While at first blush, and upon a cursory review of the Supreme Court file, it would appear that this case has been pending for an extraordinary length of time, such a conclusion would be inexact. Indeed, during the pendency of this matter, the defendant was repeatedly incarcerated in different federal correctional facilities as a result of both new arrests, and violations of the terms of a previously imposed federal supervised release sentence. Thus, many weeks, and often months, were devoted to locating the defendant in the federal correctional system, and negotiating with federal authorities to secure his appearance in state court.
On March 18, 2012, an accusatory instrument charging the defendant with a felony was filed against him. Pursuant to C.P.L. § 30.30(1)(a), the People are required to be ready for trial within six months of the commencement of the criminal action. As the six month period in which the People are required to be ready for trial is measured by the number of days in the intervening calendar months, the People are required to be ready for trial in this matter within 184 days following the commencement of the action. See People v. Cortes, 80 NY2d 201 (1992). Whether the People have satisfied this obligation is determined by computing the time elapsed between the commencement of the action 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 post-readiness periods of delay that are attributable to the People and are ineligible for an exclusion. Id. at 208. This Court makes the following findings of fact and conclusions of law with respect to the speedy trial time incurred in this case.
Calculation of Speedy Trial Time
March 18, 2012 to March 23, 2012
On March 18, 2012, a felony complaint was filed against the defendant and he was arraigned in Criminal Court. The case was adjourned, pursuant to C.P.L. § 180.80, for grand jury action to March 23, 2012. This time period, as the People concede, is charged to them. 4 days March 23, 2012 to May 10, 2012
For the purposes of speedy trial calculation, the day following the commencement of the action is deemed to be the first day, thus the People are charged with four days during this time period. See People v. Stiles, 70 NY2d 765 (1987). The People calculate this time period as five days.
On March 23, 2012, as there had been no grand jury action, the case was adjourned to July 12, 2012 for grand jury action. On April 10, 2012, however, the instant indictment was filed against the defendant. The case, therefore, was advanced to May 10, 2012 for the defendant's Supreme Court Arraignment. This time period, as the People concede, is charged to them. 48 days May 10, 2012 to June 14, 2012 to July 26, 2012
Justice Lewis Bart Stone, who has since retired, presided over the defendant's case until February 14, 2013.
On May 10, 2012, the defendant was not present in court as, although he had been released on bail in this matter, he had been taken into federal custody in Virginia due to his violation of a federal probationary sentence. The case, therefore, was adjourned to June 14, 2012 for the People to produce the defendant from federal custody and for his Supreme Court arraignment.
The defendant now contends that as the People are responsible for having him produced and failed to do so, they must be charged with this time period, as well as each and every subsequent time period during which he remained in federal custody. The People counter that they acted diligently in attempting to produce the defendant and, therefore, are entitled to a statutory exclusion pursuant to C.P.L. § 30.30(4)(e) for this and other subsequent non-production from federal custody. Indeed, pursuant to C.P.L. § 30.30(4)(e), the People are not charged with "the period of delay from detention of the defendant in another jurisdiction provided the district attorney . . . has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial." The People's efforts to secure the defendant's presence from various federal authorities often spanned multiple adjournments as he faced federal charges in different states, was frequently transferred in and between federal correctional facilities in those several states, and in certain circumstances federal authorities were unwilling to release him to state custody. The People's efforts, as a whole, plainly demonstrate their diligence.
Specifically, with respect to the May 10, 2012 adjournment, the People had been made aware that the defendant had been taken into federal custody on or about March 26, 2012, for violating the terms of his supervised release. The People were in contact with the defendant's federal supervised release officer during this time period, who informed them that the defendant had not yet been sentenced on that violation and would not be released to local authorities until that time. Judge Stone was so informed in court on May 10, 2012, and he adjourned the case to June 14, 2012 for the People to secure the defendant's appearance. The People learned from their contact with federal authorities that on May 25, 2012, the defendant was sentenced to four months incarceration for violating the terms of his federal supervised release. The People subsequently learned from federal authorities that the defendant was to be transported to a federal correctional facility to serve that sentence, and that the District Attorney's office would be unable to file a writ pursuant to the Interstate Agreement on Detainers (hereinafter "IAD"), to secure his appearance until his location had been finalized. The People's research revealed that the defendant would be serving his sentence in a federal correctional facility in Virginia but, as the defendant had been in custody since March 2012, the People were informed by federal authorities that he would be released shortly. As the defendant was to be released imminently, federal authorities informed the People that there was insufficient time for them to file the appropriate paperwork to secure his appearance. Indeed, federal authorities would not consent to the defendant's release to state custody, as it was likely that he would still be in state custody when scheduled to be released from federal custody. The People so informed Judge Stone and defense counsel in court on June 14, 2012, and requested a bench warrant, so that immediately upon his release from federal custody, state authorities could take custody of the defendant. Judge Stone declined to issue a bench warrant, instead directing the People to produce the defendant on the next court date — July 26, 2012 — if, rather than being released as scheduled in July, he remained in federal custody. The defendant was released as planned, and, on July 26, 2016, appeared in court. Based on the foregoing, the Court concludes that the People exercised due diligence throughout this time period. Indeed, the People maintained frequent contact with federal authorities, despite their refusal to release the defendant to state custody, closely monitored the status of the defendant's federal matter, and kept Judge Stone and defense counsel apprised of their efforts to secure the defendant's appearance. Accordingly, this time period, during which the defendant was in federal custody and entirely unavailable to the People, is excluded. 0 days July 26, 2012 to September 27, 2012
On July 26, 2012, the defendant appeared in court and was arraigned on the instant indictment. At the defendant's request, Judge Stone set a motion schedule, with a decision on the defendant's omnibus motion to be rendered on September 27, 2012. This time period, related to motion practice, is excluded. See People v. Fagan, 260 AD2d 219 (1st Dept. 1999). 0 days September 27, 2012 to October 25, 2012
On September 27, 2012, Judge Stone issued a written decision with respect to the defendant's omnibus motion. The People filed, off-calendar on September 10, 2012, a motion for a buccal swab with respect to both the defendant and the co-defendant. The co-defendant requested an opportunity to respond to the People's motion in writing and the case was adjourned to October 25, 2012 for that purpose. This time period, related to motion practice, is excluded. See C.P.L. § 30.30(4)(d); People v. Delvalle, 265 AD2d 174 (1st Dept. 1999). 0 days October 25, 2012 to February 14, 2013
On October 25, 2012, Judge Stone granted the People's motion for a buccal swab. The case was adjourned to February 14, 2013 for the results of the DNA testing. This time period, during which DNA testing was being conducted, is excluded. See C.P.L. § 30.30(4)(g)(i). 0 days February 14, 2013 to April 9, 2013
On February 14, 2013, the People informed the Court that the DNA testing had not yet been completed, explaining that the Office of the Chief Medical Examiner (hereinafter "OCME") had notified them that as a result of a backlog caused by Hurricane Sandy in October of 2012, OCME needed an additional sixty days to provide the DNA results.
Hurricane Sandy was a "devastating" storm "that killed more than 100 people, destroyed whole communities in coastal New York and New Jersey, left tens of thousands homeless, crippled mass transit, triggered paralyzing gas shortages, inflicted billions of dollars in infrastructure damage and cut power to more than 8 million homes, some of which remained dark for weeks."http://www.nytimes.com/ interactive/2012/10/28/nyregion/hurricne-sandy. html.
Defense counsel then informed the court and the People that federal marshals were present in the courtroom and intended to take the defendant into custody for a second violation of his federal supervised release. Counsel stated he understood that the defendant was going to be transported to a federal correctional facility in Virginia. The Court instructed the People to make efforts to secure the defendant's appearance for the next court date, should he remain in federal custody.
The case was adjourned to April 9, 2014 for the DNA results. This time period, during which DNA testing was being conducted, is excluded. See C.P.L. § 30.30(4)(g)(i). 0 days April 9, 2013 to May 21, 2013
On April 9, 2013, the People informed the Court that OCME had not yet issued a DNA report, but that the summary report would be issued the following week and the certified report would follow in a month. This time period, during which the People awaited the results of the DNA testing, is excluded. See C.P.L. § 30.30(4)(g)(i).
Additionally, the People learned that subsequent to the defendant being taken into custody on February 14, 2013, he was sentenced on his second violation of federal supervised released and transferred in late March 2013 from the correctional facility where he had been held prior to sentence, to another federal correctional facility where he would serve that sentence. As the People were only permitted to file a writ to secure the defendant's appearance pursuant to the IAD once he had been transferred to the facility where he would actually serve his sentence, and he had only just been transferred, the People were prevented from timely filing a writ to secure the defendant's appearance by April 9, 2013. Assured by federal authorities that the defendant would not again be transferred, the People informed the Court that they would file a writ with federal authorities and expected that federal authorities would allow the defendant to appear in court on this matter on May 21, 2013. The Court adjourned the case to May 21, 2013 for the People to produce the defendant. As the foregoing makes plain, and as the People secured the defendant's appearance for the very next adjournment as anticipated, the People exercised due diligence in attempting to secure the defendant's appearance. Accordingly, this time period is excluded pursuant to C.P.L. § 30.30(4)(e). 0 days May 21, 2013 to July 9, 2013
Defense counsel informed the Court that he believed the Legal Aid Society, of which he was a member, might need to be relieved from the defendant's case due to a conflict. The Court directed the People to provide counsel with additional information in an effort to determine whether an actual conflict existed.
On May 21, 2013, having secured the defendant's appearance from federal custody, the People filed a summary DNA report and informed the Court that the certified DNA report, which they had requested from OCME, would be provided shortly. The People indicated that based on the DNA results, they were considering a dismissal of the case against the co-defendant. Defense counsel informed the Court that he believed the defendant would be released from federal custody on July 14, 2013. The Court adjourned the case to July 9, 2013 for the certified DNA report and the People's decision with respect to the case against the co-defendant. This time period, during which the People awaited the final results of the DNA testing and the certified DNA report, is excluded. See C.P.L. § 30.30(4)(g)(i). 0 days July 9, 2013 to July 24, 2013
On July 9, 2013, the defendant was again produced from federal custody. Defense counsel moved to be relieved due to a conflict, as the Legal Aid Society had previously represented an eyewitness to the alleged crimes. The Court appointed a new attorney to represent the defendant and adjourned the case to July 24, 2013 for newly appointed counsel to familiarize himself with the defendant and his case. This time period is, therefore, excluded. See C.P.L. § 30.30(4)(b). 0 days July 24, 2013 to September 3, 2013
On July 24, 2013, the defendant's newly appointed attorney informed the Court that he had met with the defendant's prior attorney, and that the defendant, who was present in court, had finished his federal sentence and been released. The Court indicated that it was granting new counsel's request for an adjournment, due in part, to the substantial discovery materials involved in the case, including the DNA reports. The case was adjourned to September 3, 2013 to pick a trial date. This time period is, therefore, excluded. See C.P.L. § 30.30(4)(b). 0 days September 3, 2013 to September 13, 2013
On September 3, 2013, the defendant did not appear in court. Defense Counsel informed the Court that the defendant had been in the courthouse, but did not see his name on the court's calendar. When counsel checked the calendar, he did not see the defendant's name either, so he informed the defendant that he could leave. The Court did not issue a bench warrant and adjourned the case to September 13, 2013 for the defendant to appear. As the defendant failed to appear in court, this time period is excluded. 0 days September 13, 2013 to November 12, 2013
On September 13, 2013, the defendant appeared in court. Defense counsel informed the Court that he had retained a DNA expert, and that the expert needed "at least" two months to review the DNA reports prepared by OCME. The Court adjourned the case to November 12, 2013. As the adjournment was specifically at the defendant's request, this time period is excluded. See C.P.L. § 30.30(4)(b). 0 days November 12, 2013 to December 10, 2013
On November 12, 2013, defense counsel indicated that the expert he retained had not yet "completed the analysis" and requested that the Court adjourn the case for a month. The Court adjourned the case to December 10, 2013 for an update from defense counsel. As the adjournment was specifically at the defendant's request, this time period is excluded. See C.P.L. § 30.30(4)(b). 0 days December 10, 2013 to January 21, 2014
On December 10, 2013, the defendant was not present in Court. Defense counsel indicated that the defendant was on his way to court and aware that federal authorities were waiting in the courtroom to take him yet again into custody; the defendant did not appear before this Court. Additionally, defense counsel informed the Court that the defendant's DNA expert had concluded his examination, but defense counsel had not yet met with him to discuss his findings. Defense counsel requested an adjournment for that purpose. The Court, issuing and staying a bench warrant, adjourned the case to January 21, 2014 for an update from defense counsel. As the defendant failed to appear in court, and the case was adjourned specifically at his request, this time period is excluded. See C.P.L. § 30.30(4)(b). 0 days January 21, 2014 to March 4, 2014
On January 21, 2014, defense counsel informed the Court that the defendant had in fact been taken into custody by federal authorities for a third violation of his federal supervised release and, at last check, was in a federal correctional facility in Virginia. Counsel indicated that the defendant was scheduled to appear in federal court on January 30, 2014, and that once sentenced for this third violation, would likely be released within a month after that date. The People clarified that, based on the information they had obtained from federal authorities, assuming the defendant was sentenced in federal court on January 30, 2014, he would then be transferred to a different facility to serve that sentence. It would then take two to three weeks after the transfer to have the defendant produced in state court pursuant to a writ. Counsel suggested adjourning the case "once to see" whether the defendant had been released from federal custody, before requiring the People to file a writ to secure his appearance. The Court, at defense counsel's suggestion, adjourned the case to March 4, 2014, for the defendant to appear. As the adjournment was specifically with defense counsel's consent — indeed, at his suggestion — this time period is excluded. 0 days March 4, 2014 to April 1, 2014
In February 2014, the People learned that the defendant had been sentenced to nine months of incarceration for his third violation of federal supervised release, a longer sentence than anticipated by defense counsel. Federal authorities further informed the People that the defendant was being held in a federal correctional facility in Virginia, but would be transferred to a different facility to serve out the remainder of his federal sentence. The People later learned that the defendant had been transferred to a federal correctional facility in Oklahoma, then Pennsylvania, with a final destination of the New York Metropolitan area. On March 4, 2014, the People confirmed, in Court, that the defendant, who was still in federal custody, had just been transferred to a federal correctional facility in New York. As the defendant had just arrived, the People were unable to provide federal authorities with a writ pursuant to the IAD in time to secure his appearance on March 4, 2014. The People indicated that they would again prepare a writ and anticipated being able to secure the defendant's appearance in court on April 1, 2014. The case was adjourned to April 1, 2014 for the defendant to appear.
As the People demonstrated that they exercised due diligence in attempting to secure the defendant's appearance in court, despite his confinement in some four different federal correctional facilities in as many states, this time period is excluded.See People v. Gonzalez, 235 AD2d 366 (1st Dept. 1997); People v. Cipriano, 221 AD2d 461 (2d Dept. 1995). 0 days April 1, 2014 to May 6, 2014
On April 1, 2014, the defendant was produced from federal custody pursuant to a writ prepared by the People. The People informed the Court that they had convinced federal authorities to allow the defendant to remain in state custody during trial of this matter, and, therefore, requested that the defendant be remanded. Indeed, during the calendar call, the People submitted documents for the Court's review with respect to the defendant's transfer to state custody. As defense counsel had been unable to work with his client to prepare the case for trial due to the defendant's federal detention, the Court granted a "lengthy adjournment" to May 6, 2015 for pre-trial suppression hearings. This time period is excluded as the defendant requested a lengthy adjournment to prepare for hearing and trial and the People were entitled to a reasonable period of time to prepare for the hearings that had been ordered originally on September 27, 2012. See e.g. People v. Green, 90 AD2d 705 (1st Dept. 1982). 0 days May 6, 2014 to June 10, 2014
On May 6, 2014, a newly retained attorney appeared in court on the defendant's behalf — the defendant's third attorney. Defense counsel requested an adjournment to familiarize himself with his new client's case. The Court adjourned the case for "control" to June 10, 2014. As the defendant specifically requested the instant adjournment, this time period is excluded. 0 days June 10, 2014 to July 15, 2014
On June 10, 2014, the People provided the defendant's newly retained attorney with assorted documents and discovery materials, anticipating that the case would shortly proceed to trial. Defense counsel requested an adjournment to review those materials. The Court adjourned the case for "control" to July 15, 2014, so that defense counsel could familiarize himself with the extensive discovery materials provided by the People. As the defendant specifically requested the adjournment, this time period is excluded. 0 days July 15, 2014 to September 2, 2014
On July 15, 2014, defense counsel again requested a "control" date, with the understanding that the case would likely proceed to trial some time in October 2014. The Court adjourned the case for "control" to September 2, 2014. As the defendant specifically requested the instant adjournment, this time period is excluded. 0 days September 2, 2014 to October 14, 2014
On September 2, 2014, the Court adjourned the case to October 14, 2014 for hearing and trial. This time period is excluded, as the People are entitled to a reasonable adjournment for the purpose of trial preparation. See People v. Mears, 55 AD3d 439 (1st Dept. 2008); People v. Reed, 19 AD3d 312 (1st Dept. 2005); People v. Sonds, 287 AD2d 319 (1st Dept. 2001); People v. Acosta, 249 AD2d 161 (1st Dept. 1998). 0 days October 14, 2014 to November 3, 2014
On October 14, 2014, the People indicated that they were not ready. The Court adjourned the case to November 3, 2014 for hearing and trial. As the People concede, this time period is charged to them. 20 days November 3, 2014 to November 5, 2014
On November 3, 2014 the People indicated that they were not ready. After some discussion with the parties, the case was adjourned to November 5, 2014 for pre-trial suppression hearings only. As the People concede, this time period is charged to them. 2 days November 5, 2014 to December 11, 2014
Pre-trial suppression hearings were conducted on November 5, 2014. The Court adjourned the case to December 11, 2014 for decision, with the understanding that the case would likely proceed to trial in early January 2015. This time period, during which the defendant's motion to suppress was under consideration by the Court, is excluded. See People v. Shannon, 143 AD2d 572 (1st Dept. 1988). 0 days December 11, 2014 to January 5, 2015
On December 11, 2014, the Court issued a written decision denying the defendant's motion to suppress. The case was adjourned to January 5, 2015 for trial. As the People are entitled to a reasonable adjournment for the purpose of trial preparation following the conclusion of suppression hearings, see People v. Green, 90 AD2d 705 (1st Dept. 1982); see also People v. Mears, 55 AD3d 439 (1st Dept. 2008); People v. Reed, 19 AD3d 312 (1st Dept. 2005); People v. Sonds, 287 AD2d 319 (1st Dept. 2001); People v. Acosta, 249 AD2d 161 (1st Dept. 1998), this time period is excluded. 0 days January 5, 2015 to February 24, 2015
On January 5, 2015, the People were not ready for trial and requested January 13, 2015 for trial. Defense counsel instead requested a date in February for trial. The People indicted that they would likely file a certificate of readiness on or about January 13, 2015, the date they had requested, and the date they anticipated being ready for trial. The Court adjourned the case to February 24, 2015 for trial. On January 15, 2015, the People filed and served, off-calendar, a Certificate of Readiness.
The defendant now contends that the Certificate of Readiness was illusory as the People subsequently answered not ready for trial on several occasions. The People argue that the Certificate of Readiness was truthful and accurate when it was filed and reflected a genuine statement of current readiness to proceed to trial. The Court, as contemplated by the Court of Appeals in People v. Sibblies, 22 NY3d 1174 (2104), ordered an evidentiary hearing to resolve that factual issue. The hearing ultimately took place on October 20, 2016. In sum, the evidence at that hearing conclusively demonstrates that the certificate of readiness filed by the People on January 15, 2015 was not illusory.
The Sibblies Hearing
Assistant District Attorney (hereinafter "ADA") Courtney Groves testified at the hearing on October 20, 2016. Groves, who was admitted to practice law in 2001, has been an ADA for approximately sixteen years. She was assigned to the instant matter on March 17, 2012, when the defendant was arrested. Groves testified that on January 5, 2015, she appeared in Court and explained that she was not ready to proceed to trial on that day, but anticipated being ready for trial on January 13, 2015, and, thus, would be filing a certificate of readiness on or about January 13, 2015. Groves further testified that prior to her appearance in court on January 5, 2015, she emailed the Court and the defendant's attorney to inform them that she was not ready, but anticipated later filing a certificate of readiness. Groves further explained that prior to January 5, 2015, she had scheduled meetings with numerous witnesses to prepare for trial. Groves documented those meetings on a case-specific calendar that she kept in her office. Once she had met with a witness in her office, she would so indicate on the calendar. Additionally, Groves maintained a desk blotter calendar that she used in relation to all of her cases. On that desk calendar, Groves made a notation on January 2, 2015 indicating "Joyce trial" and "cw, et al," with a check mark next to it. Groves explained that she had scheduled and met with the complaining witness on that day. Nonetheless, she was not ready for trial on January 5, 2015, as she had not yet met with every necessary witness, and was not, therefore, "comfortable" proceeding to trial. (TR: 17). After the January 5, 2015 adjournment, Groves continued to meet with witnesses to prepare for trial. For example, she met with police witnesses on January 6, 2015 and January 12, 2015, and made notations to that effect on her calendars. Groves subsequently filed a certificate of readiness on January 15, 2015. She explained that she filed it that day, and not on January 13th as she had planned, as she had meetings out of the office on January 13th with respect to other matters and, therefore, could not have "actually started" trial. (TR: 21). Additionally, she had scheduled a meeting with a witness from the Medical Examiner's office in relation to this case on January 15, 2015. According to Groves, the case involved DNA evidence and, more specifically, what is known as "forensic statistical tool calculations" (hereinafter "FST"). (TR: 25). Groves testified that she had never tried a case that involved FST, and, as a result, felt it was necessary to meet with the forensic scientist who would be testifying at trial with respect to the FST evidence. Thus, Groves filed the certificate of readiness when she returned back to the office after having met with the witness from the Medical Examiner's office on January 15, 2015. Groves explained that she filed the certificate of readiness on January 15, 2015, as she "could have walked into court that day and proceeded to trial." (TR: 26).
That calendar was admitted into evidence at the hearing as People's Exhibit # 1.
That calendar was admitted into evidence at the hearing as People's Exhibit # 2.
Notations to "TR" followed by a number refer to a specific page of the hearing transcript.
On February 17, 2015, Groves emailed defense counsel and the Court with respect to whether counsel would stipulate to certain evidentiary matters. In that same email, Groves notified defense counsel and the Court that she was unavailable on one day, March 2, 2015, due to a personal matter. Groves sent several subsequent emails to the Court and defense counsel with respect to the scheduling issues, reiterating that she had a personal matter she needed to attend to on March 2, 2015. In light of those email communications, on February 24, 2015, the next date to which the case had been adjourned, Groves answered not ready for trial and requested March 4, 2015 for trial. Defense counsel, as a result of his own scheduling conflicts, asked for April 14, 2015, or a date thereafter for trial. The Court adjourned the case to April 21, 2015 for trial.
That email, dated February 17, 2015, was admitted into evidence at the hearing as People's Exhibit # 3. --------
From February 24, 2015 to April 21, 2015, Groves maintained contact with the witnesses and ensured that they would continue to be available for trial on or about April 21, 2015. On April 8, 2015, while on homicide call, Groves was assigned to a high-profile felony assault. As a result, she re-scheduled meetings with several witnesses in this matter, and informed the Court that she would be seeking a brief adjournment as a result of her schedule as related to the other matter she had been assigned. Thus, on April 21, 2015, Groves answered not ready for trial and requested April 30, 2015 for trial. Defense counsel had a scheduling conflict on April 30, 2015, and, instead, requested May 19, 2015 for trial. The Court adjourned the case to May 19, 2015 for trial.
On May 13, 2015, while on homicide call, Groves was assigned to a police-involved shooting. That shooting case was scheduled to be presented to a grand jury the week of May 19, 2015, and, therefore, Groves would be unavailable to proceed to trial in this matter on that day. Groves informed both the Court and defense counsel and indicated that she would be seeking an adjournment to June 9, 2015 for trial. As a result, Groves answered not ready for trial on May 19, 2015, and requested June 9, 2015 for trial. The Court so adjourned the case and on June 5, 2015, the defendant filed the instant speedy trial motion.
The defendant did not present any evidence at the hearing. The Court heard argument from the parties. This Court fully credits the testimony of Assistant District Attorney Courtney Groves.
The uncontradicted evidence presented at the hearing demonstrates that the Certificate of Readiness filed by the People on January 15, 2015 constituted a truthful statement of present readiness. See People v. Newland, 138 AD3d 611 (1st Dept. 2016). Indeed, ADA Groves, a methodical record keeper, explained in exhaustive detail her efforts to prepare the case for trial, and outlined the not-unexpected scheduling conflicts she faced as a veteran ADA in a busy city prosecutor's office. That testimony, corroborated by the myriad email updates she sent both to the Court and defense counsel, and the meticulous calendar notations memorializing her efforts to prepare the case for trial, left no doubt that when she filed that Certificate of Readiness on January 15, 2015, ADA Groves was announcing her "readiness on the ground." People v. Sibblies, 22 NY3d 1174, 1178 (2014). That she subsequently answered not ready on the very next adjournment for trial does not undermine such a finding. After all, the People's subsequent lack of readiness was attributable only to ADA Groves's personal schedule, and not to any factor or issue related to the case itself. Accordingly, the Certificate of Readiness was not rendered illusory as a result of the People's inability to proceed to trial on the next adjourn date. See People v. Brown, 2016 NY Slip. Op. 08482.
Based on the foregoing, the People are only charged with the time period from January 5, 2015, to January 15, 2015, when the Certificate of Readiness was filed. 10 days February 24, 2015 to April 21, 2015
On February 24, 2015, the People informed the Court that they were not ready for trial and requested March 4, 2015 for trial. Defense counsel indicated that he was unavailable, instead requesting April 14, 2015, or a date thereafter. The Court adjourned the case to April 21, 2015 for trial.
The defendant now contends that the People's failure to answer ready for trial on this date — February 24, 2015 — also rendered the Certificate of Readiness filed by the People on January 15, 2015 illusory, and the People must, therefore, be charged with the entirety of this time period. As explained in greater detail above, the Certificate of Readiness was not illusory. And, of course, once the People have answered ready for trial, subsequent adjournment requests are chargeable to them only for the actual period they request. Additional delays that result from either the defendant's or the court's scheduling concerns are not charged to the People. See People v. Bailey, 221 AD2d 296 (1st Dept. 1995); People v. Urraea, 214 AD2d 378 (1st Dept. 1995); People ex rel. Sykes v. Mitchell, 184 AD2d 466 (1st Dept. 1992). Accordingly, the People are only charged with the time period from February 24, 2015 to March 4, 2015. 8 days April 21, 2015 to May 19, 2015
On April 21, 2015, the People were not ready for trial and requested April 30, 2015 for trial. Defense counsel instead requested May 19, 2015 for trial. The Court adjourned the case to May 19, 2015 for trial.
Again, once the People have answered ready for trial, subsequent adjournment requests are chargeable to them only for the actual period they request. Additional delays that result from either the defendant's or the court's scheduling concerns are not charged to the People. See People v. Bailey, 221 AD2d 296 (1st Dept. 1995); People v. Urraea, 214 AD2d 378 (1st Dept. 1995); People ex rel. Sykes v. Mitchell, 184 AD2d 466 (1st Dept. 1992). Accordingly, the People are only charged with the time period from April 21, 2015 to April 30, 2015. 9 days May 19, 2015 to June 9, 2015
On May 19, 2015, the People were not ready for trial and requested June 9, 2015 for trial. The Court adjourned the case to June 9, 2015 for trial. As the People concede, this time period is charged to them. 21 days June 9, 2015 July 21, 2015
The defendant, on June 5, 2015, filed off-calendar the instant speedy trial motion. On June 9, 2015, the Court adjourned the case to July 21, 2015 for the People's response. This time period, related to motion practice, is excluded. See People v. Fagan, 260 AD2d 219 (1st Dept. 1999). 0 days July 21, 2015 to September 1, 2015
On July 21, 2015, defense counsel was not in court as he was engaged on trial in another matter. The People informed the Court that as they were awaiting transcripts with respect to several court appearances, they were not yet filing their response. The case was adjourned to September 1, 2015 for the People's response. This time period, related to motion practice, is excluded. See People v. Fagan, 260 AD2d 219 (1st Dept. 1999). Additionally, as the defendant was without counsel through no fault of the court, this time period is excluded. See People v. Lassiter, 240 AD2d 293 (1st Dept. 1997); People v. Brown, 195 AD2d 310 (1st Dept. 1993). 0 days September 1, 2015 to September 29, 2015
On September 1, 2015, the People filed their response to the instant motion and the defendant requested an opportunity to reply. The case was adjourned to September 29, 2015 for the defendant's reply. This time period, related to motion practice, is excluded. See People v. Fagan, 260 AD2d 219 (1st Dept. 1999). 0 days September 29, 2015 to October 20, 2015
On September 29, 2015, the defendant filed a reply. The People requested an opportunity to file a supplemental response. The case was adjourned to October 20, 2015 for the People's supplemental response. This time period, related to motion practice, is excluded. See People v. Fagan, 260 AD2d 219 (1st Dept. 1999). 0 days October 20, 2015 to November 24, 2015
On October 20, 2015, the People filed a supplemental response. The case was adjourned to November 24, 2015 for the Court's decision. This time period, related to motion practice, is excluded. See People v. Fagan, 260 AD2d 219 (1st Dept. 1999). 0 days November 24, 2015 to January 12, 2016
On November 24, 2015, the People informed the Court that the defendant had been arrested in Virginia on local charges and had then been arrested in Vermont on federal charges. As of November 24, 2015, the People were informed by federal authorities that the defendant was in their custody in Virginia. The People indicated that the federal authorities had informed them that it would be some time before they agreed to the defendant's appearance in state court. Indeed, as the defendant now had an open local case in Virginia, securing the defendant's appearance in the instant matter would be further complicated. The People indicated that they would remain in contact with federal authorities and update the Court and defense counsel as necessary. As the People again demonstrated that they exercised due diligence in attempting to secure the defendant's appearance in court, this time period is excluded.See People v. Gonzalez, 235 AD2d 366 (1st Dept. 1997); People v. Cipriano, 221 AD2d 461 (2d Dept. 1995).
Additionally, in light of the defendant's arrest on new local and federal charges, the Court did not issue a decision with respect to the defendant's pending C.P.L. § 30.30 motion. The parties intended to discuss the possibility of a disposition that would take into account the defendant's new matters. As the defendant's motion was, however, still under consideration by the Court, this time period is not chargeable to the People. See People v. Vidal, 180 AD2d 447 (1st Dept. 1992). 0 days January 12, 2016 to February 9, 2016
On January 12, 2016, the People provided an update with respect to the defendant's local Virginia matter and Vermont federal matter. The People informed the Court that they had been in touch with federal authorities, who refused to allow the defendant to be released to state authorities to appear in the instant matter. According to federal authorities, it appeared that the federal Vermont matter was proceeding to trial, and, therefore, the defendant would not be permitted to appear in state court until the trial had concluded. The case was adjourned to February 9, 2016 for an update with respect to the defendant's other matters, and for the People to produce the defendant, if possible. As the People demonstrated that they exercised due diligence in remaining in contact with federal authorities and attempting to secure the defendant's appearance, this time period is excluded. See People v. Gonzalez, 235 AD2d 366 (1st Dept. 1997); People v. Cipriano, 221 AD2d 461 (2d Dept. 1995).
Additionally, as the Court remained open to a disposition in light of the defendant's new matters, it did not issue a decision with respect to the defendant's C.P.L. § 30.30 motion. This time period, during which the defendant's motion remained under consideration by the Court, is excluded. See People v. Vidal, 180 AD2d 447 (1st Dept. 1992). 0 days February 9, 2016 to March 1, 2016
On February 9, 2016, the Court indicated that based on the most recent submissions filed by the parties, it was considering whether to conduct an evidentiary hearing with respect to the speedy trial motion, and adjourned the case to March 1, 2016. As the defendant's motion was under consideration by the Court, this time period is not chargeable to the People. See People v. Vidal, 180 AD2d 447 (1st Dept. 1992).
Additionally, on February 9, 2016, the People updated the Court with respect to the defendant's cases in Virginia and Vermont. The People informed the Court that the local charges pending against the defendant in Virginia had been dismissed, but that he continued to face federal charges in Vermont. The People indicated that they had been in touch with federal authorities, and had been told that the defendant was to be transferred from Virginia to a federal correctional facility in Vermont. Once the defendant arrived in Vermont, the People believed they would be permitted to file a writ with federal authorities and anticipated being able to secure the defendant's production in state court. As the People once again demonstrated that they exercised due diligence in attempting to secure the defendant's appearance in court, this time period is excluded.See People v. Gonzalez, 235 AD2d 366 (1st Dept. 1997); People v. Cipriano, 221 AD2d 461 (2d Dept. 1995). 0 days March 1, 2016 to April 12, 2016
On March 1, 2016, the People informed the Court that the defendant had in fact been transferred to a federal correctional facility in Vermont. The People also requested an opportunity to supplement their speedy trial response. The case was adjourned to April 12, 2016 for that purpose. This time period, related to motion practice, is excluded. See People v. Fagan, 260 AD2d 219 (1st Dept. 1999).
Additionally, the People informed the Court that they remained in contact with federal authorities with respect to the status of the defendant's federal case in Vermont. The People indicated that they continued to negotiate with federal authorities with respect to securing the defendant's appearance in state court. As the People demonstrated that they remained in frequent contact with federal authorities and continued to work to secure the defendant's appearance in court, this time period is excluded.See People v. Gonzalez, 235 AD2d 366 (1st Dept. 1997); People v. Cipriano, 221 AD2d 461 (2d Dept. 1995). 0 days April 12, 2016 to May 24, 2016
On April 12, 2016, the Court adjourned the case for the defendant's reply to the People's supplemental speedy trial submission. Accordingly, this time period, related to motion practice, is excluded. See People v. Fagan, 260 AD2d 219 (1st Dept. 1999).
Additionally, on April 12, 2016, defense counsel informed the Court that he had spoken to the defendant's federal defender. The People further updated the Court with respect to the status of the defendant's federal matter. In short, it was unclear whether the defendant intended to take a plea in the federal matter, or to proceed to trial. The defendant's decision in that regard would determine whether federal authorities would allow the defendant to be produced in state court. As the People once again demonstrated that they exercised due diligence in attempting to secure the defendant's appearance in court, this time period is excluded.See People v. Gonzalez, 235 AD2d 366 (1st Dept. 1997); People v. Cipriano, 221 AD2d 461 (2d Dept. 1995). 0 days May 24, 2016 to July 19, 2016
On May 24, 2016, the defendant filed a reply to the People's supplemental response to the speedy trial motion. The case was adjourned to July 19, 2016 for the Court's decision. As the defendant's motion was under consideration by the Court, this time period is not chargeable to the People. See People v. Vidal, 180 AD2d 447 (1st Dept. 1992).
Additionally, on May 24, 2016, the People, who remained in contact with federal authorities, updated the Court with respect to the status of the defendant's federal matter. The defendant's production in state court depended on the outcome of the defendant's federal case, that had not yet been resolved. As the People once again demonstrated that they exercised due diligence in attempting to secure the defendant's appearance in court, this time period is excluded.See People v. Gonzalez, 235 AD2d 366 (1st Dept. 1997); People v. Cipriano, 221 AD2d 461 (2d Dept. 1995). 0 days July 19, 2016 to September 13, 2016
On July 19, 2016, the Court informed the parties that it had not yet decided the defendant's motion, and was ordering an evidentiary hearing. See supra. The case was adjourned to September 13, 2016, for that hearing. This time period, related to motion practice, is not chargeable to the People. See People v. Vidal, 180 AD2d 447 (1st Dept. 1992).
Additionally, the People indicated that the defendant's federal matter was likely progressing to pre-trial hearings, and that the federal authorities would not allow the defendant to appear in state court until those hearings had been concluded. As the People once again demonstrated that they exercised due diligence in attempting to secure the defendant's appearance in court, this time period is excluded.See People v. Gonzalez, 235 AD2d 366 (1st Dept. 1997); People v. Cipriano, 221 AD2d 461 (2d Dept. 1995). 0 days September 13, 2016 to October 18, 2016
On September 13, 2016, as the pre-trial suppression hearings in the defendant's case had concluded, the defendant was produced in Court pursuant to a writ prepared by the People. The People announced their readiness for the speedy trial hearing. The parties and the Court agreed that the hearing would be held on October 20, 2016, a date convenient for all. This time period, related to motion practice, is excluded. See People v. Fagan, 260 AD2d 219 (1st Dept. 1999). 0 days October 20, 2016 to December 6, 2016
On October 20, 2016 the Court conducted the speedy trial hearing. The case was adjourned to December 6, 2016, for the Court's decision. As the defendant's motion was under consideration by the Court, this time period is not chargeable to the People. See People v. Vidal, 180 AD2d 447 (1st Dept. 1992). 0 days December 6, 2016 to January 10, 2017
As the Court did not anticipate having a decision prepared on December 6, 2016, the People were instructed not to produce the defendant from federal custody. The case was adjourned to January 10, 2017 for the Court's decision. As the defendant's motion was under consideration by the Court, this time period is not chargeable to the People. See People v. Vidal, 180 AD2d 447 (1st Dept. 1992). 0 days
Conclusion
The People are charged with 122 days of the 184 total days to which they are entitled. Accordingly, the defendant's motion to dismiss the indictment pursuant to C.P.L. § 30.30(1)(a) is denied. This constitutes the Decision and Order of the Court. Dated: January 10, 2017 New York, New York J.S.C.