Opinion
Docket No. CR-023221-21SU
01-18-2023
People of the State of New York v. Dante Sasso, Defendant
Raymond A. Tierney District Attorney of Suffolk County Brandon Wong / Of Counsel District Court Bureau Edward R. Palermo, Esq. Attorney for Defendant
Unpublished Opinion
Raymond A. Tierney District Attorney of Suffolk County Brandon Wong / Of Counsel District Court Bureau
Edward R. Palermo, Esq. Attorney for Defendant
Eric Sachs, J.
Upon the following papers read on these motions for dismissal
Notice of Motion/xxxxxxxxxxxxxxx and supporting papers X
Notice of Cross Motion and supporting papers;
Answering Affidavits and supporting papers X;
Replying Affidavits and supporting papers X;
Filed papers;
Other
Exhibits X; Certificate(s) of Compliance X;
(and after hearing counsel in support of and opposed to the motion) it is, ORDERED that this motion to dismiss by the defendant is decided as follows: The defendant's motion to strike the CoC/SoR and to dismiss the accusatory instrument based upon an alleged violation of his statutory speedy trial rights is DENIED.
On August 27, 2021, the defendant was arrested and charged with three counts of Criminal Possession of a Weapon in the Fourth Degree, in violation of New York State Penal Law § 265.01, a class "A" misdemeanor; one count of Criminal Possession of a Controlled Substance in violation of Penal Law § 220.03, a class "A" misdemeanor; one count of Operation of a Motor Vehicle Impaired by Drugs in violation of Vehicle and Traffic Law ("VTL") § 1192.4 (04), an unclassified misdemeanor, and one count of failing to stop for a stop sign in violation of VTL § 1172.A (0A), an infraction. He was arraigned on August 28, 2021.
By motion dated October 17, 2022, the defendant now moves this court for an order striking the certificate of compliance pursuant to CPL § 245.20 and dismissing the accusatory instrument based upon an alleged violation of his statutory speedy trial rights, pursuant to CPL §§ 170.30 and 30.30.
A. Statutory Speedy Trial Rights
Pursuant to CPL § 30.30(1)(b), with respect to the class "A" misdemeanor charges, the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal actions, taking into account all excludable time periods. The within criminal action was commenced on August 28, 2021. The People turned over discovery to the defendant and filed their Certificate of Compliance ["CoC"] and Statement of Readiness ["SoR"] two-hundred and sixteen (216) days later, on April 1, 2022.
The gravamen of the defendant's speedy trial motion is that, from the date of arraignment on August 28, 2021 until the date the People filed their CoC on April 1, 2022, (216 days) there are more than 90 days chargeable to the People. (See Def.'s Aff. (10/17/2022) at ¶ 7).
This Court finds that the defendant has met his initial burden on a CPL § 30.30 motion by alleging that the prosecution failed to declare readiness within the statutorily- prescribed time period. (See People v Goode, 87 N.Y.2d 1045 [1996]). The ultimate burden of proving that certain time periods should be excluded falls upon the People. (See People v Berkowitz, 50 N.Y.2d 333 [1980]).
In their opposition, the People argue that there are 162 days of excludable time; therefore no more than 54 days have elapsed on the speedy trial clock (see People's Aff. in Opp. (5/19/2022) at Point II).
Specifically, the People contend that the time from defendant's first appearance at arraignment on August 28, 2021 until September 20, 2021 (24 days) is excludable pursuant to CPL § 30.30(4)(f), as the defendant was without counsel through no fault of the court. (See People's Mem. of Law at Point C, p. 11/48). The People concede that the time from September 21, 2021 and October 5, 2021 (14 days) is chargeable to the People. (Id. at Point D, p. 11/48) The People contend that the time from October 5, 2021 until October 29, 2021 (23 days) is excludable, because although the defendant stated "no waivers," he also stated that he was awaiting an OASIS evaluation, which was "clearly an attempt to secure a favorable plea." (Id. at Point E, p. 11/48) The People contend this time should be excluded under CPL §§ 30.30(4)(a) and (4)(b). (Id.) The People further contend that the time from October 29, 2021 and December 2, 2021 (34 days) is excludable, as the defendant gave express waivers at his appearance on October 29, 2021. (Id. at Point F, p. 12/28). The People concede that the time period between December 2, 2021 and January 11, 2022 (40 days) is chargeable to them, as the defendant declined to give waivers at that time. (Id. at Point G, p. 12/28). The People contend that the time between January 11, 2022 and March 29, 2022 (77 days) is excludable, since the defendant's counsel requested an adjournment for the purpose of obtaining a letter proving that the defendant completed treatment. Although the defendant's counsel did not give express waivers, the People argue that counsel's statement was "clearly [] a request from the defense for an adjournment...it cannot be reasonably interpreted as anything other than the defense's request for an adjournment." (Id. at Point H, p. 12/28). Finally, the People contend that the time from March 29, 2022 and April 1, 2022 (3 days) is excludable, as the parties reached agreement as to a plea on March 29, 2022. The People contend this time is excludable as an adjournment with the consent of the defendant pursuant to CPL § 30.30(4)(b).
By contrast, the defendant contends that the time periods from October 5, 2021 until October 29, 2021 (24 days), January 11, 2022 and March 29, 2022 (77 days), and March 29, 2022 and April 1, 2022 (3 days) are all chargeable to the People, as the defendant did not provide express waivers at the October 5, January 11, and March 29 appearances. (Def.'s Reply at ¶¶¶ 7, 10 and 11).
CPL § 30.30(4)(b) expressly lists the periods of time that must be excluded from the speedy trial calculation, among which are "continuance[s]... [made] at the request of, or with the consent of, the defendant or his or her counsel." (See CPL § 30.30(4)(b) ["In computing the time within which the people must be ready for trial pursuant to subdivisions one and two of this section, the following periods must be excluded: (b) the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel"]).
It is well-established law that adjournments made at the request of, or with the consent of, the defendant's counsel are excludable pursuant to the plain language of CPL § 30.30(4)(b). See People v Martinez, 186 A.D.3d 1530, 130 N.Y.S.3d 828 [2d Dep't 2020] ["delay occasioned by adjournments at the request of or with the consent of the defense" are excludable under CPL 30.30(4)(b)]. Accord, People v Barnes, 160 A.D.3d 890, 890, 75 N.Y.S.3d 229, 231 [2d Dep't 2018] [adjournment granted at the request or with the consent of the defendant excludable] and People v Hall, 61 A.D.2d 1050, 1051 [2d Dep't 1978] [adjournments requested by the defendant are not chargeable to the prosecution]. In so holding, courts have reasoned that "CPL 30.30(4)(b)[,] which provides for exclusion based on defense consent to adjournments, operates on the premise that defendant waived the delay in the proceedings by requesting or consenting to these adjournments." People v Knight, 140 Misc.2d 1075, 1076, 532 N.Y.S.2d 485, 486-87 [Sup Ct 1988] [citing People v Worley, 66 N.Y.2d 523 at 527, 498 N.Y.S.2d 116 [1985]].
It is also well-established law that the defendant's counsel's consent to an adjournment must be "clearly expressed...to relieve the People of the responsibility for that portion of the delay." People v Liotta, 79 N.Y.2d 841, 843, 580 N.Y.S.2d 184 [1992].
However, courts have further noted that the CPL § 30.30(4)(b) exclusion is based on the premise that the defense consented to the waiver. People v Knight, 140 Misc.2d 1075, 1076, 532 N.Y.S.2d 485, 486-87 [Sup Ct 1988] ["CPL 30.30(4)(b)[,] which provides for exclusion based on defense consent to adjournments, operates on the premise that defendant waived the delay in the proceedings by requesting or consenting to these adjournments"].
In this case, three adjournments are at issue: October 5, 2021 until October 29, 2021 (24 days), January 11, 2022 and March 29, 2022 (77 days), and March 29, 2022 and April 1, 2022 (3 days). This Court's review of the transcripts of the appearance minutes reveals that on October 5, 2021, the defendant expressly stated "no waivers." (See People's Aff., Ex. C, 10/5/2021 Transcript, at p. 2, l. 18). However, the defendant provided no such express statement of "no waivers" at the January 11, 2022 and March 29, 2022 appearances. (See People's Aff., Ex. F, 1/11/2022 Transcript and Ex. G, 3/29/2022 Transcript).
With respect to the October 5 adjournment, although the adjournment appears to have been with the consent of, or without objection by, defendant's counsel, defendant's counsel also expressly stated "no waivers." In light of the fact that the defendant's counsel expressly withheld consent to waivers, this Court holds that the time is not excludable under CPL § 30.30(4)(b). See People v Bonilla Benitez, CR-015235-21SU [Order dated May 6, 2022] [Sachs, J.] [although defendant's counsel requested adjournment, time was not excludable where defendant's counsel also expressly stated "no waivers"]. However, with respect to the January and March adjournments, this Court finds that the time is excludable, as the defendant made no such statement of "no waivers" at those appearances.
Accordingly, the following time is chargeable to the People: the time from September 21, 2021 and October 5, 2021 (14 days); the time from October 5, 2021 until October 29, 2021 (24 days); the time period between December 2, 2021 and January 11, 2022 (40 days).
Since there are a maximum of 78 days chargeable to the People, the defendant's motion to dismiss based upon a speedy trial violation is DENIED.
By reason of the foregoing, the defendant's motion to strike the CoC/SoR and to dismiss the accusatory instrument on statutory speedy trial grounds is DENIED in its entirety.