Opinion
Docket No.: CR-013206-22SU
02-09-2023
The PEOPLE of the State of New York, v. Joseph BROCCOLO, Defendant.
Raymond A. Tierney, District Attorney of Suffolk County, Brandon Wong, Of Counsel, District Court Bureau, 400 Carleton Avenue, Central Islip, NY 11722, for the People. Bradley L. Kaufman, Esq., Legal Aid Society, Suffolk County, 400 Carleton Avenue, Central Islip, NY 11722, for Defendant.
Raymond A. Tierney, District Attorney of Suffolk County, Brandon Wong, Of Counsel, District Court Bureau, 400 Carleton Avenue, Central Islip, NY 11722, for the People.
Bradley L. Kaufman, Esq., Legal Aid Society, Suffolk County, 400 Carleton Avenue, Central Islip, NY 11722, for Defendant.
Eric Sachs, J.
It is,
ORDERED that this omnibus motion by the defendant is decided as follows: The defendant's motion to strike the CoC/SoR is GRANTED. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of his statutory speedy trial rights is GRANTED. The defendant's remaining motions are DENIED as moot.
On May 23, 2022, the defendant was charged under Docket No. CR-013206-22SU with one count of Harassment in the Second Degree in violation of New York State Penal Law § 240.26(1), a violation. He was arraigned on June 21, 2022.
By motion dated November 3, 2022, the defendant now moves this court for an order (1) striking the CoC/SoR as invalid; (2) dismissing the accusatory instruments based upon an alleged violation of his statutory and constitutional speedy trial rights; (3) dismissing the accusatory instrument as both jurisdictionally defective and facially insufficient; and (4) for various discovery.
A. Motion to Strike the CoC
The defendant first contends that the People's CoC/SoR, filed on June 13, 2022, is invalid due to the fact that (1) the People failed to properly and timely serve their CoC/SoR (see Def's Aff. at Point I.A, ¶¶ 25-34); (2) the People failed to comply with their automatic discovery obligations pursuant to CPL § 245.20(1) inasmuch as they failed to disclose (a) the 911 telephone calls made in connection with the incident and (b) police officer Flynn's IAB records (see Def's Aff. at Point I.B, ¶¶ 35-44); and (3) the CoC/SoR does not contain the certification required by CPL § 30.30(5-a) (see Def's Aff. at Point I.C, ¶¶ 56-60).
1. Failure to Properly and Timely Serve CoC/SoR
The defendant first argues that the People's service of the CoC/SoR (dated June 13, 2022) upon the defendant himself on June 22, 2022 — when he was represented by the Legal Aid Society—was improper. (See Def's Aff. at Point I.A, ¶ 14).
Although neither party has submitted a transcript of the minutes of the arraignment proceeding, the People do not contest the defendant's representation that he was represented by the Legal Aid Society at his arraignment on June 21, 2022. See People's Aff. at ¶ 9; Def.’s Aff. at ¶¶ 13-14. The next day, June 22, 2022, the People mailed the CoC/SoR and discovery to the defendant at his last known personal address. See People's Aff. at ¶ 10; Def.’s Aff. at ¶ 14. On September 2, 2022, the People sent the CoC/SoR and discovery to defendant's counsel. See People's Aff. at ¶ 13; Def.’s Aff. at ¶ 18.
CPL § 245.50(1) states that the People "shall serve upon the defendant and file with the court a certificate of compliance," when it has provided the discovery required under [ CPL § 245.20 ] [emphasis added]. While the statute is silent as to whom to serve in the event the defendant is represented by counsel, it is the opinion of this Court that it is a fundamental tenet of law that once a defendant has counsel, all further contact with the defendant must be through that attorney. See , e.g. , New York Rules of Professional Conduct, Rule 4.2(a) ("[i]n representing a client, a lawyer shall not communicate ... with a party the lawyer knows to be represented by another lawyer in the matter") and CPLR § 2103 ("[e]xcept where otherwise prescribed by law or order of the court, papers to be served upon a party in a pending action shall be served upon the party's attorney."). See also People v. Rossi , 154 Misc.2d 616, 587 N.Y.S.2d 511 [Justice Ct, Village of Muttontown, Nassau Cnty 1992] [the mailing of a supporting deposition directly to a defendant, rather than defendant's counsel, invalidated the deposition, resulting in a dismissal of the accusatory instrument under CPL § 100.25(2) ].
Since it is uncontroverted that the defendant was represented by the Legal Aid Society during his arraignment on June 21, 2022 (see People's Aff. at ¶ 9; Def.’s Aff. at ¶¶ 13-14), and since the People have not argued that such representation ended on June 21, 2022, this Court concludes that the defendant was represented by the Legal Aid Society on June 22, 2022. Nor do the People contend that they were unaware of the defendant's representation by counsel on June 21 and/or June 22, 2022. Consequently, the People improperly served the CoC/SoR upon the defendant by mailing it directly to him rather than to his counsel; thus, the CoC/SoR is invalid.
Accordingly, the defendant's motion to strike the CoC/SoR as invalid is GRANTED.
In light of this Court's striking the CoC/SoR on the ground that the CoC/SoR was improperly served, this Court need not reach the defendant's remaining arguments in favor of striking the CoC/SoR.
B. Motion to Dismiss Based on Statutory Speedy Trial Grounds
Next, the defendant contends that the People have exceeded their statutory speedy trial time pursuant to CPL § 30.30. (See Def.’s Aff. at Point II & II.A, ¶¶ 61-85).
Pursuant to CPL § 30.30(1)(d), with respect to the charged violation, the People were required to make an effective statement of their readiness for trial within 30 days of the commencement date of the within criminal actions, taking into account all excludable time periods. The within criminal action was commenced when the defendant was arraigned on June 21, 2022. The People filed their CoC/SoR on June 13, 2022.
The defendant contends that the within action was commenced when the charges were filed on May 23, 2022. See Def.’s Aff. at p 69. See footnote 2, infra.
The gravamen of the defendant's speedy trial motion is that the People's CoC/SoR is invalid. Thus, the CoC/SoR filed on June 13, 2022 (and served on June 22, 2022) failed to stop the running of the speedy trial clock with respect to the charge; rather the defendant contends that the time elapsed from the date charges were filed (May 23, 2022) until the date of the filing of the instant motion (November 3, 2022), 164 days, is chargeable to the People.
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, 643 N.Y.S.2d 477, 666 N.E.2d 182 [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, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ).
For the reasons discussed above, this Court finds that the CoC/SoR dated June 13, 2022 is invalid. It is undisputed that the People properly served defendant's counsel with the CoC/SoR on September 2, 2022. (See Def.’s Aff. at Point I.A, ¶ 18; People's Aff. at ¶ 13). Assuming, arguendo , that the People's CoC/SoR filed on September 2, 2022 is valid (and not illusory for failure to comply with the automatic disclosure requirements of CPL § 245), then the time from arraignment on June 21, 2022 until proper service of the CoC/SoR on September 2, 2022 (73 days) is chargeable to the People.
If the Court had deemed the September 2, 2022 CoC/SoR to be invalid for failure to comply with the automatic disclosure requirements of CPL § 245, then the time from arraignment on June 21, 2022 until the date of the filing of the instant motion on November 3, 2022 (or 135 days) could be chargeable to the People.
This Court deems the commencement of the action to be the date of arraignment on June 21, 2022. However, even if this Court deemed the date charges were filed on May 23, 2022 to be the date of commencement, the People would be chargeable with an additional 29 days, or a maximum of 102 days. Since the People have exceeded the statutory allotment of 30 days in either case, this Court need not resolve the issue.
Accordingly, as there exists a minimum of 73 days (more than the statutorily-prescribed 30 days for a violation) of chargeable time herein, the defendant's motion to dismiss on statutory speedy trial grounds is GRANTED.
In light of this Court's dismissal of the case, the defendant's remaining motions are DENIED as moot.
By reason of the foregoing, the defendant's motion to strike the CoC/SoR is GRANTED. The defendant's motion to dismiss the accusatory instruments based upon an alleged violation of his statutory speedy trial rights is GRANTED. The defendant's remaining motions are DENIED as moot.
This shall constitute the decision and Order of the Court.