EVELYN J. LAPORTE

Fayola L. Williams, Assistant District Attorney, Kings County District Attorney's Office, Brooklyn, for The People. Douglas G. Rankin, Esq., Brooklyn, for Defendant Duran.
EVELYN J. LAPORTE, J.

Defendant, FLORENCE ODJODY, is charged with one count of Assault in the Third Degree (Penal Law § 120.00[1] ); one count of Attempted Assault in the Third Degree (P.L. § 110/120.00 [1] ); one count of Menacing in the Third Degree (P.L. § 120.15); and one count of Harassment in the Second Degree (P.L. § 240.26[1] ). On October 13, 2011 the defendant moved to dismiss the complaint pursuant to Criminal Procedure Law § 30.30(1)(b) on the grounds that she has been denied her statutory right to a speedy trial. The key issue in this case revolves around the service of documents upon defense counsel.

SERVICE OF LEGAL DOCUMENTS

New York Civil Practice Laws & Rules § 308 governs the service of legal documents as follows:

Personal service upon a natural person shall be made by any of the following methods:

1. by delivering the summons within the state to the person to be served; or

2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; or

3. by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;

4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;

5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.

6. For purposes of this section, “actual place of business” shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.

CALCULATION OF TIME CHARGED TO THE PEOPLE UNDER CPL § 30.30

Under C.P.L. § 30.30(1)(b) the People must be ready for trial within ninety (90) days from the commencement of a criminal action when the defendant is charged with one or more offenses, at least one of which is an A Misdemeanor or Unclassified Misdemeanor punishable by no more than one (1) year in jail. Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. People v. Fields, 214 A.D.2d 332, 625 N.Y.S.2d 483 (1st Dept 1995); People v. Santos, 68 N.Y.2d 859, 501 N.E.2d 19, 508 N.Y.S.2d 411 (1986); People v. Berkowitz, 50 N.Y.2d 333, 406 N.E.2d 783, 428 N.Y.S.2d 927 (1980).

The instant action commenced with the defendant's arraignment on April 23, 2011. For purposes of the computation of the applicable speedy trial time, the day on which the accusatory instrument is filed is excluded. People v. Stiles, 70 N.Y.2d 765, 514 N.E.2d 1368, 520 N.Y.S.2d 745 (1987). Accordingly, April 24, 2011 constitutes day one (1) of the ninety (90) day period applicable to the instant charges. On April 23, 2011, the case was adjourned to July 7, 2011 for the People to file a supporting deposition in order to resolve hearsay within the complaint. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. People v. Colon, 59 N.Y.2d 921, 453 N.E.2d 548, 466 N.Y.S.2d 319 (1983). 74 days are chargeable to the People.

On July 7, 2011 the case was adjourned to August 3, 2011 for the People to file a supporting deposition. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. (See, People v. Colon, supra ). 27 days elapsed during this adjournment. However, the People filed the supporting deposition and a statement of readiness off-calendar on July 11, 2011, in an effort to fully convert the complaint and toll the speedy trial clock 4 days into the adjournment period. People v. Curtis, 196 Misc.2d 1001, 764 N.Y.S.2d 590 (Crim. Ct, New York County 2003); People v. Stirrup, 91 N.Y.2d 434, 671 N.Y.S.2d 433, 694 N.E.2d 434 (1998); People v. Douglas, 264 A.D.2d 671, 696 N.Y.S.2d 115 (1st Dept, 1999). Thus, assuming proper compliance with C.L.P.R § 308 rules on service of documents, the period following the filing of the statement of readiness and the August 3, 2011 appearance would generally be excludable, thereby resulting in 4 days charged to the People. According to the court file's “blue-back” and the Notice of Appearance in the file dated April 23, 2011, the attorney of record was John Godfrey of the Legal Aid Society.

On August 3, 2011 the defendant was absent from court and a bench warrant was stayed at the request of defense counsel. Whether or not the People announce ready, the subsequent period is properly excluded from the time in which the People are required to be ready because defendant failed to appear and a bench warrant was issued and stayed against him.' People v. Benjamin, 292 A.D.2d 191, 192, 739 N.Y.S.2d 667 [1st Dept 2002]; see also, People v. Patterson, 165 A.D.2d 779, 564 N.Y.S.2d 48 [1st Dept 1990] [period excludable since bench warrants were stayed at request of defense counsel].)” See also, People v. Notholt, 242 A.D.2d 251, 254, 662 N.Y.S.2d 297 [1st Dept 1997] [the time during which a defendant is absent and a bench warrant is stayed is excludable pursuant to CPL 30.30(4)(c).]”

The court noted that the People had mailed the supporting deposition and a written statement of readiness to defense attorney John Godfrey of the Legal Aid Society on July 11, 2011, not the attorney present in court, who is identified only as “Sloane” in the transcript, but stated that he was associated with attorney Douglas Rankin. The court also noted that there was no Notice of Appearance from Mr. Rankin's firm in the file and requested that Mr. Sloane leave a Notice of Appearance in the court file. This court takes notice of the fact that there is a Notice of Appearance from Mr. Rankin's firm, initialed by Mr. Sloane and dated August 3, 2011, currently in the court file.

Defendant argues that the July 11, 2011 conversion of the complaint and the People's statement of readiness are invalid because these documents were served upon attorney John Godfrey, instead of attorney Douglas Rankin.

The People argue that the key to the validity of the conversion of the complaint and statement of readiness lies in whether the People acted in good faith. In People v. Vaughn, 36 A.D.3d 434, 831 N.Y.S.2d 27 (1st Dept 2007), although the statement of readiness was sent to the former address of same defendant's counsel, the defense attorney himself conceded that there was no bad faith. Id. at 434, 831 N.Y.S.2d 27. However, in the case at bar an entirely different attorney was served with the supporting deposition and Mr. Rankin has not made any concessions regarding the characterizations of the People's actions. In the instant case the defendant argues that serving the papers on another attorney prevented the defendant from receiving key documents in this case in a timely manner.

In People v. Chu Zhu, 171 Misc.2d 298, 654 N.Y.S.2d 272 (Sup Ct, Kings County 1997), the People possessed actual knowledge of the substitution of counsel and conceded that they were aware of the change in lawyers. The court held that the People had chosen to “perfunctorily deliver their notice to an attorney whose representation of the defendant they knew had terminated more than two weeks before,” and ruled that the People's argument of good faith in attempting to serve former defense counsel might be far more persuasive if they had only “had mere constructive notice of substituted counsel, but not where there is actual notice.” This is comparatively analogous to the case at bar, because the only Notice of Appearance in the file prior to August 3, 2011 came from the Legal Aid Society. Therefore, it can be argued that the People, having no reason to believe that the court file was inaccurate, had acted in good faith in serving the converting documents and statement of readiness up on Mr. Godfrey.

Courts have held that in cases where the People are on actual notice of the substitution of counsel their disregard of that change in circumstances can not be ignored and the service of documents up on the wrong attorney will be deemed to be ineffective. People v. Stewart, 21 Misc.3d 1109[A], 873 N.Y.S.2d 236 (Crim Ct, New York County), citing, People v. Chittumuri, 189 Misc.2d 743, 736 N.Y.S.2d 581 [Crim. Ct. Queens Cty.2001] [service on prior counsel ineffective]; People v. Starkey, 4 Misc.3d 1002A, 791 N.Y.S.2d 872 [Sup Ct, Kings County 2004] [defense counsel had moved offices; service at old address ineffective].

However, based upon the court file and the submissions of the parties, and in light of the facts and circumstances in this matter, this court finds that the People acted in good faith and that their July 11, 2011 service of the supporting deposition along with a statement of readiness is therefore valid. Accordingly, the People are charged with only 4 days during the July adjournment period.

As noted above, on August 3, 2011, the defendant was not present in court and a warrant was stayed at the request of counsel. The case was adjourned to October 5, 2011 for Discovery by Stipulation (“DBS”). Because DBS is regarded as a courtesy provided to the defendant in lieu of motion practice and discovery practice in Kings County, the adjournment is excludable under CPL § 30.30(4)(a) “irrespective of the People's readiness”. People v. Khachiyan, 194 Misc.2d 161, 752 N.Y.S.2d 243 (Crim. Ct., Kings Co., 2002). See, also, People v. Wilson, 27 Misc.3d 1049, 899 N.Y.S.2d 582, 2010 N.Y. Slip Op 20136, Crim. Ct., Kings Co.; People v. Dorilas, 19 Misc.3d 75, 860 N.Y.S.2d 797 (2008); People v. Sai, 223 A.D.2d 439, 637 N.Y.S.2d 56 (1st Dep't, 1996); People v. Burton, 133 Misc.2d 701, 507 N.Y.S.2d 809 (Crim. Ct. N.Y. County 1986); C.P.L. § 30.30(4)(a). This time is also excludable due to the defendant's absence. People v. Benjamin, supra; People v. Patterson, supra; People v. Notholt, supra; and CPL 30.30(4)(c).]” 0 days included.

On October 5, 2011 the case was adjourned to October 13, 2011 because defense counsel was absent from court due to the fact that he was on trial in another matter. This period is excludable as defendant was without counsel through no fault of the court. (CPL 30.30[4][f] ). People v. Burton, supra; People v. Sai, supra;C.P.L. § 30.30(4)(a). 0 days included.

On October 13, 2011, the defense attorney returned to court and was served with a copy of the “DBS”. The defendant then filed and served the instant motion to dismiss and the case was adjourned to December 19, 2011 for the People to respond and submission and for review of the motion. This entire period is excludable and continues to be excludable to date. People v. Burton, 133 Misc.2d 701, 507 N.Y.S.2d 809 (Crim. Ct. N.Y. County 1986) (court found period during which a case was adjourned for defense motions was excludable in computation of statutory speedy trial time); People v. Sai, 223 A.D.2d 439, 637 N.Y.S.2d 56 (1st Dept 1996) (court found that time requested by defense counsel to submit motions is excludable from speedy trial calculations). C.P .L. § 30.30(4)(a). 0 days included.

SUMMARY OF CALCULATIONS

Period Event Charged

April 23, 2011—July 7, 2011 Complaint to be converted 74 days

July 7, 2011—August 3, 2011 Complaint to be converted S.O.R. filed 7/11/11 4 days

August 3, 2011—October 13, 20BWS—DBS 0 days

October 13, 2011—present Adjourned for 30.30 mtn 0 days

Total 78 days

Conclusion

Based on the foregoing, in total, the People are charged with 78 days of includable delay since the commencement of the action on April 23, 2011. Because less than 90 days of chargeable time has elapsed on these charges, Defendant's motion to dismiss the complaint pursuant to C.P.L. § 30.30, is denied.

The foregoing is the decision and the order of the court.