Opinion
No. 23-050020
12-22-2023
People of the State of New York, Plaintiff, v. Matthew Brennan, Defendant.
For the People: Denise L. Weiss, Esq., Deputy Town Attorney, Town of Clarkstown For the Defendant:Matthew Brennan, pro se
Unpublished Opinion
For the People: Denise L. Weiss, Esq., Deputy Town Attorney, Town of Clarkstown
For the Defendant:Matthew Brennan, pro se
Marc R. Ruby, J.
RELEVANT FACTS AND PROCEDURAL HISTORY
This action was transferred here for disposition, upon an April 24, 2023 County Court Order, given under CPLR 325(g)/CPL 170.15(3). Before the disposition is discussed, a recitation of the harrowing, antecedent procedural history, lends context. The Defendant's pro se status, throughout the proceedings, also bears mentioning.
For many years, the Defendant, and the Town of Clarkstown , have been embroiled in a dispute, regarding the Defendant's allegedly illegal use of his real property. In late 2016, Clarkstown issued the Defendant notices of violation, arising under the Town Code. In the main, Clarkstown accused the Defendant of illegally using his residence as a two-family dwelling.
While this matter is duly captioned: People of the State of New York v. Matthew Brennan, the People are styled "Clarkstown" herein.
Thereafter, on May 8, 2017, the Defendant applied to Clarkstown's Zoning Board of Appeals ("ZBA") for a variance, which would allow a two-family use of his property. See Brennan v. Hobbs, 193 A.D.3d 725 (2d Dep't 2021). After the variance was denied, the Defendant commenced a CPLR Article 78 proceeding, to review the ZBA's determination.
On June 26, 2018, Supreme Court denied the Article 78 petition. Id. After the Defendant appealed, the Appellate Division affirmed the denial. Id. The Defendant then sought further review, but the Court of Appeals dismissed the Defendant's appeal, sua sponte, on September 9, 2021. See Brennan v. Hobbs, 37 N.Y.3d 999 (2021).
Meanwhile, in December 2017, Clarkstown had brought an action against the Defendant in Clarkstown Justice Court, based on the alleged Town Code violations. Yet, as the Article 78 proceeding was winding through New York's state courts, the Defendant brought a collateral action, in the Southern District, under 42 U.S.C. § 1983. See Brennan v. Town of Clarkstown, 19-CV-11115 (VB), 2020 WL 4287364, at *1 (SDNY July 27, 2020). There, the Defendant contended Clarkstown infringed his Fourteenth Amendment rights, by interfering with his ability to convert his house to a two-family use. Id. The Southern District granted Clarkstown's motion to dismiss, and held that a defense appeal to the Second Circuit, would not be taken in good faith. Id.
When the proceedings in Clarkstown Justice Court finally resumed, in September 2021, the case was dismissed, "when it was determined that pre-trial discovery had not been exchanged in a timely manner." See People's Memo of Law in Opposition to Defendant's Motion to Dismiss and to Motion to Suppress Discovery Evidence ; at pp. 5 & 6.
Not the instant motion.
Subsequently, on, or about May 19, 2022, this action commenced with the filing of a Violation Information, in Clarkstown Justice Court. Thereunder, the Defendant stands charged with contravening sections of the Town Code: 1a) § 109-14: Using a property in a manner not permitted by an approved building permit of certificate of occupancy-namely, illegal conversion of a single-family dwelling into a two-family dwelling; and, 1b) § 109-14: Altering a property in a manner not permitted by an approved building permit of certificate of occupancy-namely, leaving a deck without a required handrail. Another charge, § 216-3A: Accumulation of debris around the property, was previously dismissed. Clarkstown Justice Court issued a criminal summons, contemporaneously, compelling the Defendant's initial appearance for arraignment on June 7, 2022 .
More on this shortly.
As previously indicated, the case was transferred here, from Clarkstown Justice Court, on April 24, 2023. This Court received that "Court's Entire File", under cover of a CPL § 170 Divesture transmittal, dated May 3, 2023. The file was robust, but did not include a Certificate of Discovery Compliance, under CPL § 245 ("CofC"), nor a Statement of Trial Readiness, under CPL § 30.30 ("SoR"). And while not unusual, the file contained no transcripts of proceedings before Clarkstown Justice Court.
After transfer, the next court date was calendared for June 19, 2023. Clarkstown did not appear, and the Defendant moved for instant dismissal. This Court reserved on the motion, and set the next appearance down for July 19, 2023. On July 19, 2023, both parties were present in court, and this Court inquired whether a negotiated resolution was possible. To that end, the next appearance was scheduled for October 18, 2023.
Throughout this action's pendency, the Defendant has filed numerous motions including motions to suppress evidence, motions to controvert a search warrant, motions to have the case transferred, and numerous motions to dismiss the case. Some of these motions were made in Clarkstown Justice Court; others were made here. Some motions were briefed; others were made orally. Apart from the instant decision, this Court has not decided any other motion.
In the interim, the parties skirmished over the prospect that this case might be transferred back to Clarkstown Justice Court. As such, it became apparent that a trial on the merits was likely required. Accordingly, this Court necessarily needed to consider whether the parties were trial-ready. Consequently, when the parties appeared on October 18, 2023, this Court noted the absence of both a CoC, and an SoR. Inasmuch as the Defendant had several motions-to-dismiss pending, this Court indicated that a motion for dismissal of an information, under CPL § 170.30(1)(e) should be made in writing .
An accusatory instrument was filed on, or about, May 19, 2022. However, on October 11, 2022, Clarkstown repealed the entire chapter of the Town Code the Defendant stands charged under. The proscribed conduct he is accused of engaging in was simultaneously recodified. In any event, this Court assumes, arguendo, that the prosecution remains viable, in the aftermath of repeal. And if the Defendant were convicted of contravening one of the provisions he is charged under, he would be subject to a fine up to $2,500.00, and imprisonment for up to 15 days. Since the action did not commence here, this Court could not readily ascertain whether there was a colloquy with the Defendant about the dangers and disadvantages of self-representation. See People v. Crampe, 17 N.Y.3d 469 (2011). In opposition, Clarkstown produced a transcript from Clarkstown Justice Court, memorializing the Defendant's arraignment at his second appearance, and also stated that the Defendant requested an adjourned arraignment. Nevertheless, this Court cannot affirmatively state why arraignment was put over to the second appearance. The possibility that arraignment was adjourned in order to allow the Defendant time for engaging counsel, or to pause, before proceeding pro so, cannot be foreclosed. Accordingly, the Defendant's time for filing the instant pre-trial motion, as set forth under CPL § 255.20, was effectively relaxed. Moreover, in light of how long this case has been pending, in light of the apparent basis for this motion, in light of the Defendant's pro se status, in light of a less-than-clear record, and in light of this being a transferee Court, this motion is similarly deemed timely and practical, under CPL 245.50(4)(b). See People v. Chavers, 80 Misc.3d 1218 (A), 1, 2023 NY Slip Op 51030(U) (Sup Ct, Kings County 2023).
Clarkstown contended that discovery was complete, and that a corresponding CofC was served and filed, along with an SoR. A briefing schedule was set after this Court re-confirmed the files transferred from Clarkstown did not contain a CofC, nor an SoR. After the Defendant filed the instant motion, Clarkstown appended a CofC and an SoR to its opposition brief; both are dated June 7, 2022. Neither document is stamped "filed" or "received" from Clarkstown Justice Court. Nor is there an affidavit-of-service evincing the Defendant's receipt of same. Nevertheless, this Court accepts Clarkstown's assertion that the CoC and SoR were filed and served.
This acceptance is bolstered by a transcript of the July 5, 2022 proceeding in Clarkstown Justice Court, wherein the Court acknowledged receipt of the CoC and SoR. However, this Court's disposition turns on another occurrence memorialized in the transcript. On July 5, 2022, the Defendant was served with discovery. See Transcript from July 5, 2022; T3-4. The service of discovery was captured on the record:
TOWN ATTORNEY:I have discovery I'd like to give Mr. Brennan. (T3:18)
Addressing the Court
THE COURT:You have just (emphasis added) got a lot of paper. (T4:20)
Addressing the Defendant
THE COURT:Do you want some time to review that? (T4:22)
Addressing the Defendant
As such, service of this discovery necessarily did not occur until a month after the June 7, 2022 date affixed to both the CofC and SoR. Neither the file from Clarkstown Justice Court, nor Clarkstown's opposition brief contain a Supplemental CoC, or superseding SoR. And the record is silent on whether Clarkstown was afforded an extension, exemption, exception, or other special circumstances excusing compliance with CPL Article 245 discovery obligations.
LEGAL ANALYSIS
Building inspectors and code enforcement officials engage in law enforcement activity. People v. Brogan, 70 Misc.2d 282 (Suffolk Dist Ct, May 11, 1972). As such, the Criminal Procedure Law applies to code/zoning violation cases brought under Town Codes, when the defendant is subject to punishment in the form of fines, or incarceration. People v. Hacker, 76 Misc.2d 610 (Suffolk Dist Ct, Nov. 28, 1973).
Accordingly, Speedy Trial rights attach in prosecutions for violations of local laws and ordinances. People v. Vancol, 166 Misc.2d 93 (Westbury Just Ct, July 19, 1995); People v. Zulli, 165 Misc.2d 190 (Valley Stream Just Ct, April 26, 1995). An unreasonable or untimely delay in prosecuting a defendant, can result in dismissal for a denial of due process. People v. Singer, 44 N.Y.2d 241 (1978). Therefore, defendants charged with violating local laws and ordinances, are afforded Speedy Trial rights. Vancol, supra; Zulli, supra.
As set forth under CPL § 30.30(1)(d), the People must be ready for trial within thirty days, where a defendant is accused of a non-criminal offense(s) (at least one being a violation). People v. Vasquez, 75 Misc.3d 49, 52 (App Term, May 23, 2022); People v. Ambrosini, 74 Misc.3d 83, 85 (App Term, February 3, 2022). And under CPL § 30.30(1)(d), the People must announce readiness for trial within 30 days after a violation information is filed. Unlike when a desk appearance ticket issues, in instances where a defendant's initial court appearance is compelled by a criminal summons, the Speedy Trial clock commences ticking prior to arraignment. People v. Jeffers, 73 Misc.3d 1237 (A), 2021 NY Slip Op 51284(U) *2 (New Scotland Just Ct, Dec. 22, 2021).
Defendants charged with contravening municipal codes, under information, are entitled to discovery. People v. All State Properties, LLC, 29 Misc.3d 201, 205 (Hempstead Just Ct, June 2, 2010). And "when the prosecution has provided the discovery (emphasis added) required by CPL § 245.20(1)... it shall serve upon the defendant and file with the court a [CofC]." CPL § 245.50(1). A CofC is not complete until all of the material and information identified as discoverable is actually produced to the defense. People ex rel. Ferro v. Brann, 197 A.D.3d 787, 788 (2nd Dep't 2021).
So unless a court grants permission to the contrary, the People may not file a CofC which claims to have exercised due diligence, and turned all known material and information over to the defense, without having actually turned over the material and information. People v. Adrovic, 69 Misc.3d 563, 574 (Crim Ct, Kings County Sept. 3, 2020). Said another way, CPL § 245.20(2) prescribes a two-part obligation onto the People: 1) Ascertaining the existence of discoverable material and information; and, 2) Making the material and information available to the defense. People v. Williams, 73 Misc.3d 1209 (A), 2 (Crim Ct, New York County 2021). If discoverable material is in the People's possession, the material must actually be produced to the defense. People v. Figueroa, 76 Misc.3d 888, 910 (Crim Ct, Bronx County 2022).
Just last week, the Court of Appeals reiterated the People are directed to file a CofC after they have provided discovery required by CPL § 245.20(1). People v. Bay, 2023 NY Slip Op 06407 (Ct App Dec. 14, 2023). Taken together, CPL §§ 245.50(3) and 30.30(5), plainly require that the People file a proper CofC reflecting that they have complied (emphasis added) with their disclosure obligations before being deemed trial-ready. Id. To this end, CPL § 30.30(1) instructs that the court must grant a defendant's motion under CPL § 170.30(1)(e), to dismiss on speedy trial grounds, if the prosecution is not ready within the applicable timeframe. Id. The procedural working of a successful defense motion is:
An improper CofC renders an SoR illusory;
The illusory SoR does not toll the Speedy Trial clock;
More time elapses on the clock than the People are allowed; and, The case is thereby dismissed. Id.
Indeed, absent special circumstances, set forth under CPL § 245.50(3), the People's compliance with Article 245 discovery obligations is a prerequisite to a valid readiness statement. People v. Guzman, 75 Misc.3d 132 (A), 3 (App. Term, 2nd Dep't 2022).
At the threshold, the Court acknowledges the Court of Appeals has countenanced a scenario where an SoR is announced at (or even before) arraignment. People v. Carter, 91 N.Y.2d 795 (1998). However, such scenario is not operative here. And the Court will proceed in evaluating the CofC upon the touchstones of reasonableness under the circumstances, good faith, and due diligence. People v. Cajilima, 75 Misc.3d 438, 441n (Sup Ct, Nassau County 2022).
The June 7, 2022 CofC and SoR predate the July 5, 2022, on-calendar, on-record service of discovery by a month. Without belaboring the obvious, discovery had not actually been produced to the Defendant, when the CofC and SoR were filed. Inasmuch as neither Clarkstown Justice Court, nor this Court, granted permission for filing an incomplete CofC, or an extension of time to file a complete CofC within 30 days, then, under Guzman and Adrovic, the belated service of discovery runs afoul of Bay, Ferro, and Williams.
In all events, Ferro is similarly instructive on another proposition. This Court is fully cognizant of being a transferee court, and realizes it has not had the benefit of presiding over all of the proceedings. Moreover, the CoC and SoR were not known to the Court, until the instant opposition motion, which, ironically, is based on the absence of these very documents. All this is compounded by the absence of a Supplemental CofC, or any finding of special circumstances, militating a deviation from the prescribed 30-day-trial-readiness period. And finally, and most importantly, the on-record, in-court service of discovery upon the Defendant, one month after the date on the CofC and SoR, mandates but one disposition.
Even if some illuminating fact has not been made known to the Court, any ambiguities in the record are construed in favor of the Defendant. This is because the People bear the burden "to ensure, in the first instance, that the record of the proceedings... is sufficiently clear to enable the court considering the...CPL 30.30 motion to make an informed decision as to whether the People should be charged" with any delay. Ferro, supra at 196, quoting People v. Cortes, 80 N.Y.2d 201, 215-216 (1992).
Additionally, this decision is hardly at odds with Clarkstown Justice Court's own views on discovery procedures. After all, the previous case against the Defendant was dismissed because "pre-trial discovery had not been exchanged in a timely manner." (T:5-6). The only logical inference is: the Defendant had not been timely provided discovery. For it is difficult imaging the Defendant would have reaped the benefit of dismissal, if he was the one who had not timely furnished discovery.
Here, it appears the CofC was improperly filed, and that the simultaneous declaration of trial-readiness, was therefore illusory. As such, the SoR could not have tolled the Speedy Trial clock, and the 30-day readiness period, prescribed by CPL § 30.30, expired.
Decretal Language Appears on the Following Page
ORDER
As consistent with the foregoing, the case is hereby dismissed. The CofC was improperly filed. As such, the illusory SoR never stopped the Speedy Trial clock, which has been ticking, since 2022. Since this is longer than the 30 days afforded under CPL § 30.30, dismissal is therefore required under the Criminal Procedure Law, as well as under mandatorily binding jurisprudence.
Although the Defendant was given leave for filing a supporting reply, and although a corresponding court appearance was scheduled for February 21, 2024, any reply is now academic, as this case is off the Court's calendar.
IT IS SO ORDERED.