Opinion
No. 2016KN002338.
03-22-2017
The PEOPLE of the State of New York, Plaintiff, v. Dilmurod NAZAROV, Defendant.
James Kirshner, Esq., for the Defendant. Albert Dayan, for the Defendant. Natasha Grant, Esq., for the People. Sandra Roberts, Esq., for the People.
James Kirshner, Esq., for the Defendant.
Albert Dayan, for the Defendant.
Natasha Grant, Esq., for the People.
Sandra Roberts, Esq., for the People.
JOANNE D. QUIÑONES, J.
Defendant was arraigned on January 14, 2016 on a felony complaint charging him with one count each of Coercion in the First Degree, in violation of Penal Law (P.L.) section 135.65(1), a class D felony; Coercion in the Second Degree, in violation of P.L. section 135.60(1), a class A misdemeanor; Assault in the Third Degree, in violation of PL section 120.00(1), a class A misdemeanor; Menacing in the Third Degree, in violation of P.L. section 120.14(1), a class A misdemeanor; Menacing in the Second Degree, in violation of P.L. section 120.15(1), a class B misdemeanor; and Harassment in the Second Degree, in violation of P.L. section 240.26(1), a violation. On May 26, 2016, the court granted the People's oral application to dismiss the felony count of Coercion in the First Degree and the accusatory instrument was converted into a misdemeanor complaint. On that date, the People filed the supporting deposition of the complainant dated April 14, 2016, together with a certificate of translation dated May 17, 2016, converting the misdemeanor complaint into an information and the People answered ready for trial. Off-calendar on September 6, 2016, the People filed and served a superseding information (SSI) charging the defendant with all of the charges contained in the original accusatory instrument including the felony charge of Coercion in the First Degree. The SSI was accompanied by a new supporting deposition of the complainant dated September 1, 2016, a certificate of translation also dated September 1, 2016, and a statement of readiness (SOR).
By motion filed and served February 24, 2017, defendant now moves the court for an order dismissing the accusatory instrument on the grounds that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law (C.P.L.) sections 30.30(1) and 170.30(e). The People oppose the motion in responses filed and served on February 27, 2017 and March 2, 2017, respectively. The defendant filed and served reply papers to the People's opposition on March 8, 2017.
For the reasons stated below, defendant's motion to dismiss on speedy trial grounds is denied.
DISCUSSION
In this case, once the People moved to dismiss the felony count, the highest crimes against the defendant were class A misdemeanors (see P.L. §§ 120.00[1], 135.60[1] ), punishable by a sentence of imprisonment not to exceed one year (P.L. § 70.15[1] ). Where the defendant is charged with a class A misdemeanor, the People must be ready for trial within 90 days of commencement of the criminal action (C.P.L. § 30.30[1][b] ). Where a criminal action is commenced by the filing of a felony complaint, and later converted into an information, the period applicable for determining the amount of time in which the People must be ready for trial is the period applicable to the new charges, calculated from the date the first instrument is replaced, or six months from the filing of the felony complaint, whichever is shorter (see C.P.L. § 30.30 [5 ][c]; see also People v. Cooper, 98 N.Y.2d 541, 543 [2002] ; People v. Spector, 181 Misc.2d 522, 523, 695 N.Y.S.2d 858 [Crim Ct, N.Y. County 1999], lv den 96 N.Y.2d 942 [2001] ). Where the aggregate of the 90 day period and the period of chargeable time which elapsed from the date of the filing of the felony complaint exceeds six months, the applicable period is six months from the filing of the original felony complaint (C.P.L. § 30.30[5] [c] ).
In the instant matter, one hundred and thirty-three (133) days of chargeable time had elapsed before the People dismissed the felony count. Because the aggregate of that chargeable time and the 90 day period applicable to the new charges exceeds six months, the applicable speedy trial period in this case is six months from the filing of the felony complaint, that is six months or one hundred and eight-two (182) days from January 14, 2016 (see C.P.L. § 30.30[5][c] ).
The court notes that 2016 was a leap year and thus the month of February that year had twenty-nine (29) days.
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 (People v. Santos, 68 N.Y.2d 859, 861 [1986] ). Once 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, the submissions of the parties, and the stenographic minutes of the proceedings held on May 26, 2016, October 6, 2016, December 5, 2016, the court finds as follows:
January 14, 2016–march 16, 2016(62 days chargeable)
On January 14, 2016 defendant was arraigned on a felony complaint and bail was set. The defendant posted cash bail that day and the matter was adjourned to March 16, 2016 for grand jury action. As conceded by the People, an adjournment for grand jury action is chargeable to the People.
March 16, 2016–May 26, 2016(71 days chargeable)
On March 16, 2016 there was no grand jury action and the case was adjourned to July 29, 2016 on the felony dismissal calendar for grand jury action.
On May 26, 2016 the People advanced the case, with the defendant and defense counsel present, to dismiss the felony count of Coercion in the First Degree. On that same date, the People filed and served a supporting deposition signed by the complainant together with a certificate of translation and answered ready for trial. As the People concede, the period that elapsed from March 16, 2016 to May 26, 2016 is chargeable to the People.
May 26, 2016–June 24, 2016(0 days chargeable)
On May 26, 2016 the People dismissed the felony count, converted the complaint into a misdemeanor information and answered ready for trial. Defense counsel requested discovery and the matter was adjourned to June 24, 2016 for discovery by stipulation (DBS).
An adjournment for discovery is excludable (C.P.L. § 30.30[4][a] ; People v. Thomas, 26 Misc.3d 144[A] [App Term, 2nd, 11th & 13th Jud Dists 2010] [time attributable to DBS is excludable]; People v. Dorilas, 19 Misc.3d 75, 76–77, 860 N.Y.S.2d 797 [App Term, 2nd Dept 2008] [same]; People v. Khachiyan, 194 Misc.2d 161, 166, 752 N.Y.S.2d 243 [Crim Ct, Kings County 2002] [adjournment for DBS which 7F'is in lieu of motion practice and discovery practice in Kings County" is excludable] ).
June 24, 2016–August 8, 2016(0 days chargeable)
On June 24, 2016 the People failed to serve DBS and were directed to file and serve it off-calendar by July 1, 2016. The matter was adjourned to August 8, 2016, for hearing and trial. The defendant does not challenge the excludability of this adjournment and the People, while not specifying why this period is excludable, refer to August 8, 2016 as "the first Hearing and Trial date" and contend that this period is not chargeable.
Normally, the People are entitled to a reasonable excludable adjournment to prepare for pre-trial suppression hearings ordered by the court (see People v. Greene, 223 A.D.2d 474, 637 N.Y.S.2d 79 [1st Dept], lv den 88 N.Y.2d 879 [1996] ; People v. Lucas, 25 Misc.3d 1213[A] [Crim Ct, Kings County 2009] ). In Kings County, once DBS has been exchanged, cases are perfunctorily or as a matter of course adjourned for "hearings and trial" even in cases where the People do not seek to introduce any statement or identification evidence and there was no physical evidence recovered from the defendant. That is, courts routinely adjourn matters for "hearing and trial" notwithstanding that there are no hearings required. Here, there were no hearings required or granted: there was no property recovered from the defendant, the People did not give notice of any statements made by the defendant, and although the People filed and served identification notice at defendant's arraignment of two positive identifications made of the defendant by the complainant, it is undisputed that the parties are known to one another thereby obviating the need for a pre-trial Wade hearing (see People v. Gissendanner, 58 N.Y.2d 543, 552 [1979] ). As such, the People are not entitled to a reasonable adjournment to prepare for trial where no hearings were required and no dispositive motion, such as a motion to dismiss on speedy trial or facial insufficiency grounds, was made (see People v. Wyche, 4/13/01 NYLJ 19, [col 2] [Crim Ct, Kings County]; People v. Grant, 7/11/95 NYLJ 27, [col 6] [Crim Ct, N.Y. County] ). Nevertheless, because the People had answered ready for trial on May 26, 2016 and are not required to repeatedly answer ready for trial, this period is not chargeable (see People v. Cortes, 80 N.Y.2d 201, 214 [1992] ["the People are generally not required to declare their readiness repeatedly throughout the pendency of a criminal action"] ).
At defendant's arraignment, the People served notice pursuant to C.P.L. section 170.10(8–a) alleging that the defendant and the complaint had a past or present intimate relationship. Additionally, the People submit in their opposition papers that the complainant and defendant "are ex-boyfriend and ex-girlfriend" (see People's Affirmation in Opposition dated 2/27/16, p. 1, ¶ 4).
August 8, 2016–October 6,2016(15 days chargeable)
On August 8, 2016 the People answered not ready for trial and the matter was adjourned to October 6, 2016, for "hearing and trial or 30.30." On August 23, 2016 the People filed and served an SOR off-calendar. As the defendant concedes, the People's act in filing this SOR served to toll the speedy trial clock (People v. Stirrup, 91 N.Y.2d 434, 440 [1998] ). The People are chargeable, however, with the fifteen (15) days that elapsed before the SOR was filed and served.
October 6, 2016–December 5, 2016
Off-calendar on September 6, 2016 the People filed and served an SSI together with a new supporting deposition and affirmation of translation and a second SOR. The SSI charged the defendant with the previously dismissed felony count of Coercion in the First Degree.
On October 6, 2016 the People answered ready for trial and indicated that an SOR had been filed and served off-calendar on August 23. The defendant did not challenge the People's statement of readiness but rather stated that he was not ready for trial because he had a hearing at the Eastern District (see Transcript of 10/6/16, p. 2, lines 16–18). When asked by the court, "when can you be ready for trial," defense counsel indicated that he had "some evidence that would be worthwhile for the People to look at in this case" (id. at p. 2, 671 N.Y.S.2d 433, 694 N.E.2d 434, lines 19–21) and requested "a little bit longer date so we can sort this out with the People" (id. at p. 3, 671 N.Y.S.2d 433, 694 N.E.2d 434, lines 9–11).
Neither the People nor the defendant made any record of the SSI or second SOR that were filed off-calendar on September 6, 2016, and the defendant was not arraigned on the SSI.
The defendant now submits that the People's SOR dated September 6, 2016 and the People's declarations of readiness in open court on October 6, 2016, December 5, 2016, and January 9, 2017 are invalid and illusory because the SSI filed by the People contained a felony count. Citing People v. Peluso, 192 Misc.2d 33, 40–41, 745 N.Y.S.2d 845 (Crim Ct, Kings County 2002), he asserts that the People cannot effectively answer ready for trial "until all counts of an accusatory instrument have been converted, dismissed or severed" and that the period between September 6, 2016, the date the People filed and served the SSI, to February 22, 2017, the date they moved to dismiss the felony count from the SSI, are chargeable to the People.
The People concede that the SSI erroneously contained the previously dismissed felony count and that the People could not answer ready for trial on a felony count, but maintain that their declarations of readiness were valid with respect to all the non-felony counts against the defendant. The People cite to People v. Minor, 144 Misc.2d 846, 848, 549 N.Y.S.2d 897 [App Term, 2nd and 11th Jud Dists 1989], for the proposition that "the People's failure to timely proceed on one count of an accusatory instrument does not necessarily adhere to the remaining counts upon which the People could be ready for trial."
In further support of their position, the People rely on the Court of Appeals' decision in People v. Dion, 93 N.Y.2d 893 [1999]. In Dion, the defendant was originally arraigned on a felony complaint charging him with Criminal Mischief in the Third Degree, a felony, and Petit Larceny, a misdemeanor. About a month and a half later, the People moved to reduce the felony charge to the misdemeanor charge of Criminal Mischief in the Fourth Degree and answered ready for trial. Because the court had not followed the procedure set forth in C.P.L. section 180.50, the reduction was ineffective and the felony charge was not properly reduced until an additional five months had elapsed. The defendant argued that his speedy trial rights were violated because the felony charge was not properly reduced until more than six months after commencement of the action. The Court found that there were not six months of delay attributable to the People and specifically stated that the People's declaration of readiness on the date they originally attempted to reduce the felony count "included the misdemeanor charge of Petit Larceny [and] that unreduced charge was unaffected by the procedural mechanics of C.P.L. [section] 180.50" (Dion, 93 N.Y.2d at 894, 689 N.Y.S.2d 685, 711 N.E.2d 963 ). Other appellate courts have likewise held that the People can validly answer ready for trial on the converted counts of an accusatory instrument despite the fact that the instrument has unconverted or defective counts (see, e.g., People v. Gray, 7 Misc.3d 127[A] [App Term, 2nd & 11th Jud Dists 2004] [lower court's granting of motion to dismiss on speedy trial grounds modified to extent of reinstating those counts of instrument which were converted and upon which the People answered ready within the statutory speedy trial period]; see also People v. Naim, 46 Misc.3d 150[A] [App Term, 1st Dept 2015] [defect in one count of the accusatory instrument "did not signify a lack of readiness to proceed on the properly converted counts"]; People v. Brooks, 190 Misc.2d 247, 249, 736 N.Y.S.2d 823 [App Term, 1st Dept 2001] [any perceived pleading defect relating to one charge did not serve to vitiate the People's otherwise valid readiness statement relating to the other properly pleaded and converted charges] ).
Notwithstanding the Court of Appeals' decision in Dion, the defendant asks this court to follow People v. Gordon, 24 Misc.3d 462, 875 N.Y.S.2d 872 (Crim Ct, Kings County 2009). In Gordon, the defendant was arraigned on a felony complaint charging her with one felony count and two misdemeanor counts. Two months later, the People made a record that the case was on for reduction and served and filed what they claimed was a superseding information. The People did not provide any reasons for the reduction and the defendant was never arraigned on the purported superseding information. The superseding information filed and served by the People turned out to be a copy of the original felony complaint with the words "superseded [sic] complaint" added to its face. It contained the same charges as the original accusatory instrument, including the felony charge. Almost a year after the filing of the purported superseding information, the defendant filed a speedy trial motion asserting that the People's prior declarations of readiness were illusory because the accusatory instrument contained a felony count. In granting the motion, the court disagreed with the People's assertion that their failure to properly reduce the felony count had no bearing on their declarations of readiness with respect to the misdemeanor counts. In its decision, the court reasoned that Dion was distinguishable in that the felony charge in Dion was properly reduced to a misdemeanor prior to trial whereas in Gordon there was no indication in the court file that the People ever moved to dismiss the felony count.
The facts here are distinguishable from Gordon. Here, both the official transcript of the May 26, 2016 proceedings and the court file establish that the People did in fact move to dismiss the sole felony count of Coercion in the First Degree. The original felony complaint has a line drawn through the felony count and the handwritten notation "dismiss," which this court interprets to mean "People dismiss," made by the judge then presiding over the matter. The minutes of the proceeding reflect that the People stated on the record "People move to dismiss 135.65," filed a supporting deposition and affirmation of translation and then answered ready (Transcript of 5/26/16, p. 2, lines 7–10). The court then arraigned the defendant on the superseding information by asking, "So he pleads not guilty?" (id. at p. 2, 875 N.Y.S.2d 872, line 11) and defense counsel responded, "Yes, pleading not guilty on behalf of the defendant" (id. at p. 2, 875 N.Y.S.2d 872, line 12–13).
While the court does not condone careless mistakes, it is clear that the People did not mean to include the previously dismissed felony count on the SSI that was filed and served on September 6, 2016, an accusatory instrument on which the defendant was never arraigned. In any event, assuming the SSI is the governing accusatory instrument in this case , the court finds that the People's declarations of readiness off the record in their SORs and on the record, while not effective as to the felony count, were valid with respect to the properly converted non-felony counts (see Dion, 93 N.Y.2d at 894, 689 N.Y.S.2d 685, 711 N.E.2d 963 ; see also Gray, 7 Misc.3d 127[A] ; Naim, 46 Misc.3d 150[A] ; Brooks, 190 Misc.2d at 249, 736 N.Y.S.2d 823 ).
On February 22, 2017, the People moved to dismiss (the previously dismissed) felony charge of Coercion in the First Degree from the SSI.
Accordingly, this adjournment is excludable because the People answered ready for trial on the record in the presence of defense counsel (see People v. Cajigas, 224 A.D.2d 370, 372, 638 N.Y.S.2d 458 [1st Dept 1996], app den 88 N.Y.2d 845 [1996] ; People v. Armstrong, 163 Misc.2d 588, 590, 624 N.Y.S.2d 507 [App Term, 1st Dept 1994], app den 84 N.Y.2d 1028 [1995] ).
This period is also excludable as an adjournment granted at the request of defense counsel (C.P.L. § 30.30[4][b] ). Courts have consistently held that even in cases where the People have failed to obtain an accusatory instrument sufficient for trial, adjournments granted at the request or consent of the defense are excludable from speedy trial calculations (see, e.g., People v. Worley, 66 N.Y.2d 523 [1985] ; see also Brooks, 190 Misc.2d 247, 249, 736 N.Y.S.2d 823 ; People v. Jones, 151 Misc.2d 582, 582 N.Y.S.2d 325 [App Term, 2nd Dept 1991] ).
December 5, 2016–January 9, 2017 (0 days chargeable)
On December 5, 2016 the People answered ready for trial and new counsel appeared on behalf of the defendant. When asked if he was ready, defense counsel stated he "just got the case yesterday [and has] to look at paperwork also, so if we can have a date" (see Transcript of 12/5/16, p. 2, lines 11–12). The case was adjourned to January 9, 2017. This period is excludable because the People answered ready for trial on the record in the presence of defense counsel (see Cajigas, 224 A.D.2d at 372, 638 N.Y.S.2d 458 ; Armstrong, 163 Misc.2d at 590, 624 N.Y.S.2d 507 ) and also as an adjournment granted at the request of defense counsel (C.P.L. § 30.30[4][b] ).
January 9, 2017–February 3, 2017 (0 days chargeable)
On January 9, 2017 the People answered ready for trial, but defense counsel was not ready to proceed. The matter was adjourned to February 3, 2017. This period is excludable because the People answered ready for trial on the record in the presence of defense counsel (see Cajigas, 224 A.D.2d at 372, 638 N.Y.S.2d 458 ; Armstrong, 163 Misc.2d at 590, 624 N.Y.S.2d 507 ) and also as an adjournment granted at the request of defense counsel (C.P.L. § 30.30[4] [b] )
February 3, 2017–February 6, 2017 (0 days chargeable)
On February 3, 2017 both sides answered ready for trial but there were no trial parts available. The matter was adjourned to February 6, 2017 for trial. This period is excludable because the People answered ready for trial on the record in the presence of defense counsel (see Cajigas, 224 A.D.2d at 372, 638 N.Y.S.2d 458 ; Armstrong, 163 Misc.2d at 590, 624 N.Y.S.2d 507 ). Moreover, a post-readiness delay resulting from court congestion is not chargeable to the People (People v. Goss, 87 N.Y.2d 792, 797 [1996] ).
February 6, 2017–February 14, 2017(0 days chargeable)
On February 6, 2017 the People answered ready for trial, but defense counsel requested an adjournment to work out a disposition. The matter was adjourned to February 14, 2017 for possible disposition on consent. An adjournment granted at the request or with the consent of defense counsel is excludable (C.P.L. § 30.30[4][b] ).
February 14, 2017–February 27, 2017(0 days chargeable)
On February 14, 2017 the defendant failed to appear in court at 9:30AM as directed and at 11:17 AM a bench warrant was ordered. The defendant appeared in court later that day and the warrant was vacated. No disposition was reached by the parties and the matter was adjourned to February 27, 2017 for trial.
On February 17, 2017 the People advanced the case to request a remand hearing pursuant to C.P.L. section 530.12(1)(a). The court was engaged and the matter was adjourned to February 22, 2017 for the remand hearing.
On February 22, 2017 this court conducted a hearing and after the hearing, denied the People's application. On this date the People also made an application to dismiss the felony count of Coercion in the First Degree from the SSI. The People's application was granted and the matter was adjourned to February 27, 2017 for trial.
The defendant does not challenge this period and the court finds that this entire period is excludable as "a reasonable period of delay resulting from other proceedings concerning the defendant" (C .P.L. § 30.30[4][a] ).
February 27, 2017–March 22, 2017(0 days chargeable)
On Monday, February 27, 2017 the People filed and served a response to the defendant's speedy trial motion which was filed and served off-calendar on Friday, February 24, 2017. The People requested an opportunity to supplement their response and the court set a schedule: any supplemental papers by the People were due on March 2, 2017 and any reply papers from the defendant were due on March 7, 2017. The matter was adjourned to March 22, 2017 for decision.
An adjournment for motion practice and the period during which defendant's motion is "under consideration by the court" is excludable (C.P.L. § 30.30 [4 ][a]; see People v. Shannon, 143 A.D.2d 572, 572–573, 533 N.Y.S.2d 62 [1st Dept], lv den 73 N.Y.2d 860 [1988] [time while speedy trial motion under consideration by court is excludable] ).
CONCLUSION
In total, the People are charged with 148 days, which does not exceed the statutory time limit provided by C.P.L. section 30.30(1).
Accordingly, the defendant's motion to dismiss the accusatory instrument for lack of a speedy trial is denied.
This constitutes the decision and order of the Court.