Opinion
2009CN000992.
Decided March 29, 2011.
Jin Han, Esq., 100 Park Ave, Ste 1600, NY, NY 10017, For D.
NY Count District Attorney's Office by ADA Sarah Khan and ADA Elizabeth Donlinger, One Hogan Place, NY, NY 10013, For the People.
Defendant was arraigned on a charge of Prostitution, a B misdemeanor (Penal Law § 230.00) on February 6, 2009. After multiple adjournments, the case was scheduled for trial on November 16, 2010. On that date, the People were ready for trial and the undercover officer testified at a Hinton hearing. However, due to a Rosario issue, the trial itself was adjourned to December 14, 2010. On that date, the People were again ready for trial and the Court had cleared its calendar and was available to try the case. When the case was called for trial, defendant filed and served a CPL § 30.30 motion alleging that there were 169 days charged to the People. This is well in excess of the 60 day statutory limit.
The threshold issue before the Court is whether this motion, filed moments before the People's opening address, was timely.
A motion to dismiss an information on speedy trial grounds should be made prior to the commencement of trial or the entry of a guilty plea. CPL § 170.30 (2). The motion must be made in writing and upon reasonable notice to the People. CPL §§ 170.45 210.45 (1). Failure to follow the statutory procedure results in a waiver of the claim. People v Lawrence, 64 NY2d 200, 203 (1984).
A non-jury trial commences with either the first opening address or the swearing of a witness (CPL § 1.20). Because this was a non-jury trial, defendant's motion was technically made before commencement of trial. The motion was also in writing. However, by not filing and serving this motion until seconds before the trial was to commence, defendant failed to give reasonable notice to the People. People v Smith, 91 AD2d 928 (1st Dept, 1983); People v Weaver, 162 AD2d 486 (2nd Dept, 1990); People v Baxter, 216 AD2d 931 (4th Dept, 1995).
In Smith ( supra, at 929) the Appellate Division, noting that "the motion was technically made before the commencement of trial, i.e., on the day that the voir dire of jurors was to commence", stated that "this can hardly be said to have been made upon reasonable notice to the People'". In Weaver ( supra, at 487) defense counsel filed and served his motion as a panel of prospective jurors was waiting outside the courtroom. The Appellate Division concluded that "under the circumstances, we agree with the trial court that the defense counsel's tactics deprived the People of reasonable notice of the motion", citing People v Lawrence ( supra). The Baxter court upheld the trial court's denial of the CPL § 30.30 motion which was served on the first day of trial, noting that it "was not made upon reasonable notice to the People" and that, "by failing to
follow the statutory procedure, defendant waived his right to a dismissal on speedy trial grounds" ( Baxter, supra, at 931), also citing People v Lawrence ( supra) .
People v Gonzalez ( 116 AD2d 735 [2nd Dept 1986]) and People v Waring ( 206 AD2d 329 [1st Dept, 1994]), two cases cited by defendant, both rely solely on the "prior to commencement of trial" provision of CPL § 210.20(2) to find that the CPL § 30.30 motions were timely. Neither case addresses the "reasonable notice" requirement of CPL § 210.45(1).
This motion is based upon facts of record fully known or knowable to the defendant well before trial. In fact, defendant claims that there were 169 days charged to the People as of November 16, 2010. Defendant could have filed the motion well in advance of trial. Based on defendant's calculations, the 60 day statutory limitation had been exceeded as of January 12, 2010 when the People filed, off-calendar, a statement of readiness.
The statutory requirements that the motion be made before trial, in writing and upon reasonable notice to the People are based upon the strong public policy to further orderly trial procedures and preserve scarce trial resources. People v Lawrence, supra, at 207. Adjourning a trial to allow the People adequate time to respond to a CPL § 30.30 motion which could have been filed and served well in advance of trial runs counter to this strong public policy. While there may be instances where a CPL § 30.30 claim is not ripe until the eve of trial and an adjournment for a response would be justified, such is not the case here.
Under the facts of this case, defendant's motion, filed moments before trial, was not "upon reasonable notice to the People". CPL § 210.45 (1). By failing to fulfill the statutory requirements, defendant waived his right to a dismissal on speedy trial grounds. People v. Lawrence, supra, at 203.
Defendant's motion to dismiss pursuant to CPL § 30.30 is hereby denied.
This constitutes the decision and order of the Court.