Opinion
No. 2015BX032235.
06-16-2016
The PEOPLE of the State of New York, v. Mohamed KAMARA, Defendant.
Darcel D. Clark, District Attorney, Bronx County by Peter L. D'Angelo, Assistant District Attorney, for the People. The Bronx Defenders by D. Aaron Novod, Esq., for Defendant.
Darcel D. Clark, District Attorney, Bronx County by Peter L. D'Angelo, Assistant District Attorney, for the People.
The Bronx Defenders by D. Aaron Novod, Esq., for Defendant.
ARMANDO MONTANO, J.
Defendant is charged with eight counts of Identity Theft in the Third Degree (PL § 190.78[1] ).
Defendant moves for an order dismissing the accusatory instrument on speedy trial grounds, pursuant to CPL §§ 170.30 and 30.30. Should dismissal be denied, defendant moves for an order suppressing any and all statements taken from defendant for which proper notice was given, or in the alternative, granting a hearing for findings of fact and conclusions of law (Huntley/Dunaway).
Procedural History
1. On July 15, 2015, defendant was arraigned on a felony complaint charging him with six counts of Grand Larceny in the Fourth Degree (PL § 155.30[1] ), seven counts of Identity Theft in the Second Degree (PL § 190.79[2] ), eight counts of Petit Larceny (PL § 155.25), eight counts of Identity Theft in the Third Degree (PL § 190.78[1] ), and eight counts of Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40). The case was adjourned to July 20, 2015 for grand jury action.
2. On July 20, 2015, the People indicated that the case had not been presented to the grand jury. The case was adjourned to September 21, 2015.
3. On September 21, 2015, the People indicated that the case had not been presented to the grand jury. The case was adjourned to November 17, 2015.
4. On November 17, 2015, the People indicated that the case had not been presented to the grand jury. The case was adjourned to January 25, 2016 for grand jury action.
5. By motion filed and served on January 14, 2016, the People moved, pursuant to CPL § 180.50(2), to reduce the charges in the felony complaint by dismissing counts one, two, three, and five. The People also filed and served under separate cover a supporting deposition and a statement of readiness.
6. On January 25, 2016, the court dismissed counts one and two. The People stated that they were ready. The case was adjourned to March 10, 2016 for response and decision.
7. Off-calendar, on February 18, 2016, the defendant filed and served the instant motion.
8. On March 10, 2016, counts three and five were dismissed. The case was adjourned to May 23, 2016 for decision.
9. On May 23, 2016, the court had yet to render a decision on the instant motion. The case was adjourned to June 16, 2016 for decision.
Motion to Dismiss
In general, the People must be ready for trial within six months for felony cases, 90 days for cases in which the most serious charge is a class A misdemeanor, 60 days for cases in which the most serious charge is a class B misdemeanor, and 30 days for cases in which only a violation is charged. CPL § 30.30(1). Where a felony complaint is replaced with or converted to an information or a misdemeanor complaint, CPL § 30.30(5)(c) provides that:
the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.
In other words, the People must be ready for trial within 90 days from the filing of the new accusatory instrument or six months from the filing of the felony complaint, whichever is earlier. People v. Cooper, 98 N.Y.2d 541 (2002) ; People v. Guirola, 51 Misc.3d 13 (App Term, 2d Dept., 2d, 11th & 13th Jud Dists 2016).
The instant action was commenced on July 15, 2015 by the filing of a felony complaint. On January 25, 2016, the two felony counts were dismissed. The earlier time period is six months from the filing of the felony complaint. Therefore, the People must be ready for trial within six months, or in this case, 184 days, of July 15, 2015, to wit: January 15, 2016.
Defendant argues that this case must be dismissed as the People failed to be ready for trial within six months of commencement. Specifically, defendant asserts that the People should be charged with 194 days for the entire time period from July 15, 2015, the date on which defendant was first arraigned, to January 25, 2016, the date on which the charges were formally reduced pursuant to CPL § 180.50. Defendant avers that 1) the People failed to obtain a valid misdemeanor information within six months of commencement as the charges were not reduced until after CPL § 30.30 time had expired and 2) since the People did not have a valid misdemeanor information upon which they could have stated ready for trial, the statement of readiness filed and served on January 14, 2016 is invalid.
In opposition, the People argue that the instant motion should be denied since they should only be charged with 183 out of 184 days of delay. The People assert that they stopped the speedy trial clock by filing a motion to reduce and any time during which the motion was pending must be excluded pursuant to CPL § 30.30(4)(a). In addition, the People submit that the filing and service of the supporting deposition and statement of readiness on January 14, 2016, effectively stopped the speedy trial clock as to the sole remaining charge of PL § 190.78(1).
“[CPL 30.30 ] does not address problems involving speedy trial rights or due process in a constitutional sense. Instead, it is purely a statutory readiness rule'. It was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly.” People v. Sinistaj, 67 N.Y.2d 236, 239 (1986). The Court of Appeals has “consistently construed [CPL § 30.30 ] in light of its language and its legislative history, that this so-called speedy trial' statute was intended only to address delays occasioned by prosecutorial inaction. ” People v. McKenna, 76 N.Y.2d 59, 63 (1990) (emphasis added). Thus, “[t]he People are chargeable only with delay they have caused which directly implicates [their] ability to proceed with trial.' “ People v. Prisco, 32 Misc.3d 349, 351, quoting People v. Cortes, 80 N.Y.2d 201, 210 (1992).
“Whether the People have satisfied [their 30.30] obligation 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). For CPL § 30.30 purposes, in order for the People to be “ready for trial”, the People must satisfy two elements. First, there must be a communication of readiness by the People which appears on the trial court's record by way of either a statement of readiness in open court or a written notice of readiness sent by the prosecutor to both defense counsel and the court clerk. See, People v. Kendzia, 64 N.Y.2d 331 (1985). Second, the People must declare their readiness when there are in fact ready to proceed to trial. Id. at 337.
This court finds that defendant has met his initial burden “by alleging that the prosecution failed to declare readiness within the statutorily prescribed time period.” People v. Luperon, 85 N.Y.2d 71, 77–78 (1995). To survive dismissal, the People must establish sufficient periods of excludable delay. People v. Santos, 68 N.Y.2d 859 (1986) ; People v. Berkowitz, 50 N.Y.2d 333 (1980). “[O]nce the People set forth the statutory exclusions on which they intended to rely, defendant [must] identify the specific legal and factual impediments to those exclusions.” People v. Beasley, 16 NY3d 289, 292 (2011).
The People concede and this court agrees that they should be charged with all of the time from July 15, 2015 to January 14, 2016 for a total of 183 days. Consequently, dismissal hinges on whether the People stopped the speedy trial clock by filing a “motion to reduce”, a supporting deposition, and a statement of readiness on January 14, 2016.
This court must make note that although labelled as a “motion to reduce”, the People did not seek to replace the felony charges with misdemeanor charges. Rather, the People asked the court to dismiss counts one, two, three, and five altogether. Reducing felony charges to non-felony charges pursuant to CPL § 180.50 is not the legal equivalent of dismissing felony charges and proceeding on already charged misdemeanor offenses . Both defendant and the People are using the term “reduction” incorrectly.
Upon consent by the prosecution, the court is authorized to inquire as to whether a felony charge should be reduced to a non-felony charge. CPL § 180.50(1). Only after such an inquiry can the court reduce a felony charge to a non-felony charge. CPL § 180.50(2). However, no such inquiry is required where the felony charge is dismissed altogether rather than reduced. People v. Johnson, 5 NY3d 752 (2005).
Criminal Procedure Law § 30.30(4)(a) excludes the following time periods when calculating the time within which the People must be ready for trial:
a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court (emphasis added).
Even though “CPL 30.30(4)(a) applies to all pre-trial motions concerning the defendant, not just defense motions” (People v. Reed, 19 AD3d 312, 315 [1st Dept.2005] ), the disputed time period, January 14, 2016 to January 25, 2016, did not result from pre-trial motion practice. This case had already been adjourned on November 17, 2015 to January 25, 2016 due to the People's failure to present the case to the grand jury. As such, the time period from January 14, 2016 to January 25, 2016 cannot be excluded pursuant to CPL § 30.30(4)(a).
Nonetheless, this court finds that by filing and serving a statement of readiness and a supporting deposition on January 14, 2016, the People properly converted the charge of PL § 190.78(1) and effectively stopped the speedy trial clock as to that charge. Appellate cases in the First Department support the concept of partial conversion. People v. Naim, 46 Misc.3d 150(A) (App Term, 1st Dept.2015) ; People v. Ausby, 46 Misc.3d 126(A) (App Term, 1st Dept.2014) ; People v. Castro, 2001 N.Y. Slip Op 50084(U) (App Term 1st Dept.2001) ; People v. Gonzalez, 168 Misc.2d 136 (1st Dept.1996). Under partial conversion, each count in an accusatory instrument is treated separately for speedy trial purposes. And as such, “a defect in a count does not necessarily require dismissal of all counts of a multi-count accusatory instrument.” People v. Minor, 144 Misc.2d at 848 ; see also, People v. Miraglio, 17 Misc.3d 165 (Crim Ct, Kings County 2007) ; People v. Brooks, 180 Misc.2d 987 (Crim Ct, Bronx County 1999).
In People v. Dion, 93 N.Y.2d 893 (1999), the defendant was charged with Criminal Mischief in the Third Degree and Petit Larceny. On May 14, 1996, the People declared their readiness on the record. The People also moved to reduce the felony charge of Criminal Mischief in the Third Degree to the misdemeanor charge of Criminal Mischief in the Fourth Degree. Yet, the felony charge was not properly reduced pursuant to CPL § 180.50 until October 15, 1996, more than six months after the action had commenced on March 13, 1996. In affirming the County Court's denial of the defendant's speedy trial motion, the Court of Appeals held that “when the People answered ready on May 14, 1996, their readiness included the misdemeanor charge of petit larceny. That unreduced charge was unaffected by the procedural mechanics of CPL 180.50.” Dion at 894.
Similarly here, the subsequent dismissal of counts one, two, three, and five after the expiration of speedy trial time had no effect on the charge of PL § 190.78(1). Thus, as to the charge of PL § 190.78(1), the People are charged with 183 days for the time period from July 15, 2015 to January 25, 2016. The People have not exceeded the statutorily prescribed time of 184 days.
Suppression of Statement Evidence
Defendant's motion to suppress statement evidence is granted solely to the extent that a combined Huntley/Dunaway hearing shall be held.
Accordingly, defendant's motion to dismiss the accusatory instrument pursuant to CPL CPL §§ 170.30 and 30.30, is denied. Defendant's motion to suppress statement evidence is granted solely to the extent that a combined Huntley/Dunaway hearing shall be held.
This constitutes the decision and order of this court.