Opinion
2003NY058836.
Decided July 7, 2004.
Robert M. Morgenthau, District Attorney, New York, New York, By: Ada Kim Han. for the People.
Adam Silverstein, New York, New York, for the Defendant.
Defendant is charged with Aggravated Harassment in the Second Degree (Penal Law § 240.30), predicated upon three phone calls he purportedly made to the complainant over a two-day period. He now moves to dismiss the accusatory instrument pursuant to CPL §§ 170.30, 170.45, 210.45, 30.20 and 30.30 on the ground that his right to a speedy trial has been denied. For the reasons that follow, defendant's motion is granted.
Where the top count charged against the defendant is a class "A" misdemeanor, the People must announce ready for trial within ninety days of the commencement of the action, absent a showing of excludable time (CPL § 30.30[b]). Once the defendant has shown the existence of a delay greater than ninety days, the burden to show any prereadiness exclusion falls upon the People ( People v. Daniels, 217 AD2d 448, 452 [1st Dept.], lv denied 88 NY2d 917). The burden shifts back to the defendant to show postreadiness inclusions ( id.). The People, however, still bear the burden of producing a record of the proceedings sufficient for the court to reach an informed decision ( People v. Stirrup, 91 NY2d 434; People v. Cortes, 80 NY2d 201, 215).
In order to establish that the People are ready for trial, the record of the proceedings must show that the People were actually ready and (1) clearly stated their readiness on the record; or (2) filed and served a Certificate of Readiness off calendar ( People v. Smith, 82 NY2d 676; People v. Kendzia, 64 NY2d 331).
Defendant meets his initial burden in alleging that the more than 90 days of includable time has elapsed since the commencement of the case ( People v. Goode, 87 NY2d 1045).
Both sides concur, and the court records show, that the People announced ready by serving and filing a certificate of readiness on November 20, 2003 ( Smith, supra). The People bear the burden of showing exclusions prior to this date, while defendant bears the burden of showing inclusion after this date ( Daniels, 217 AD2d 448).
The Court has before it the Record of Court Action, the defendant's motion and reply, and the People's response. Neither party has provided any record of the prior proceedings.
September 9, 2003 to September 17, 2003: On September 9, 2003, defendant was arraigned and the court set bail. Defendant waived motions and the case was adjourned for trial. The People incorrectly urge that this period is excludable as a reasonable period of time to prepare for trial pursuant to People v. Green, ( 90 AD2d 705 [1st Dept.], lv denied 58 NY2d 784), and its progeny.
In Green, the First Department held that the People were entitled to a reasonable period to prepare for trial following the trial court's decision on defendant's motion. As that court and the Court of Appeals have made clear in subsequent decisions, "[t]he `motion time' exception applies only to time actually attributed to making, responding to and deciding motions" ( People v. Torres, 214 AD2d 401, 402 [1st Dept.], lv denied 86 NY2d 803; People v. Collins, 82 NY2d 177, 81 [1993], compare, People v. Brown, 99 NY2d 488, 492 [[47-day period excludable where the court adjourned the case after defense counsel indicated she planned to file a pretrial motion in the defendant's unrelated narcotics case but then failed to do so]). Here, there were no motions filed or attempted to be filed. Thus, the motion exception under CPL § 30.30(4)(a) is not applicable. The People could have readily remedied the situation by either announcing ready for trial at arraignments or filing a certificate of readiness off calendar ( Smith, 82 NY2d 676; Kendzia, 64 NY2d 331). They did neither. Rather, as they concede, they were not actually ready for trial on September 9, 2003 (People's Affirmation in Opposition, ¶ 5[ii]). Thus, these eight (8) days are includable ( People v. Santiago, 147 Misc.2d 143 [Crim Ct NY County 1990]; People v. Collins, surpa).
September 17, 2003 to October 21, 2003: On September 17, 2003, the People were not ready for trial due to the unavailability of the arresting officer. The case was adjourned for trial. The parties correctly agree that this thirty-four (34) day period is includable ( Smith, 82 NY2d 676; Kendzia, 64 NY2d 331).
October 21, 2003 to December 3, 2003: On October 21, 2003, the People were not ready for trial due to motion practice on another unconsolidated matter. The People allege in their response that they requested a fourteen (14) day adjournment. The court papers do not reflect the People's request and the People have not provided the transcript of the proceeding to support their claim ( Stirrup, 91 NY2d 434; Cortes, 80 NY2d 201). A Certificate of Readiness was filed and served, however, on November 20, 2003, stopping the speedy trial clock ( id.). Thus, there are thirty (30) days of includable prereadiness time for the period of October 21 through November 20, 2003.
December 3, 2003 to February 5, 2004: The People were not ready for trial on December 3, 2003. The Record of Court Action indicates that the People requested one week. The People are only chargeable with the time they request after having announced ready ( People v. Bruno, 300 AD2d 93 [1st Dept.], lv denied, 100 NY2d 641). The People unnecessarily served and filed a second Certificate of Readiness on February 13, 2004 ( People v. Acosta, 249 AD2d 161, 161 [1st Dept.], lv denied 92 NY2d 892). Thus, the People are correctly charged with seven (7) days while the remaining fifty-seven (57) day period is excludable.
February 5, 2004 to February 26, 2004: On February 5, 2004, the People announced that they were not ready for trial. The People requested one week for trial. There are seven (7) days of includable time and fourteen (14) days of excludable time ( Bruno, 300 AD2d 93).
February 26, 2004 to March 4, 2004: On February 26, 2004, the Record of Court Action indicates that the People were not ready to proceed and filed and served a motion to consolidate the instant matter with a related case. The case was adjourned to March 4, 2003 to join the other matter. An adjournment for motion practice must be excluded (CPL § 30.30[a]). As such, this seven (7) day period is excludable.
March 4, 2004 to March 12, 2004: On March 4, 2004, the People were not ready for trial. The Record of Court Action reads "ãNR" (People not ready). Directly underneath that indication the record reads "-3/8". Under "Reason for Adjournment" the case was scheduled to be adjourned to March 8, 2004, and then that date was crossed out and changed to March 12, 2004. The People contend that they requested March 8, 2004 for trial and the case was adjourned to March 12, 2004. Defendant asserts that the People were not ready and the case was adjourned to March 12, 2004, at which time he filed the instant motion. The record is not clear as to why the court originally set the requested date of March 8, 2004 and subsequently changed it to March 12, 2004. As such, the record before this Court does not support the People's contention. Having failed to provide the minutes from the proceeding to clarify the record, the People are properly charged with the eight (8) day period ( Stirrup, 91 NY2d 434; Cortes, 80 NY2d 201).
Finally, defendant challenges the People's good faith announcement of readiness as illusory because of their subsequent unreadiness. There is nothing illusory about the filing of a certificate of readiness and subsequent unreadiness ( People v. Camillo, 279 AD2d 326 [1st Dept. 2001]). "The mere fact that the prosecutor subsequently requested adjournments or was not ready for trial on certain dates does not invalidate the statement of readiness [citation omitted] which is presumed to be accurate and truthful" ( Acosta, 249 AD2d 161, 161). Since such statements of readiness are not illusory, the People are properly charged with the postreadiness adjournment periods they specifically request unless there is another basis for inclusion ( People v. Vaughn, 254 AD2d 236 [1st Dept.], lv denied 92 NY2d 1055).
Accordingly, since a total of ninety-four (94) days is deemed chargeable to the People, defendant's motion is granted and the case dismissed with sealing stayed for thirty (30) days from the date of this decision.