Opinion
No. 2016KN057943.
08-31-2017
The PEOPLE of the State of New York v. Kok CHIANG, Defendant.
John Arlia, Esq., for the defendant. Kimberly Seabrooks, ADA, for the People.
John Arlia, Esq., for the defendant.
Kimberly Seabrooks, ADA, for the People.
MICHAEL D. KITSIS, J.
The defendant, charged with Criminal Mischief in the Fourth Degree (PL § 145.00(1)), Petit Larceny (PL § 155.25), Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40), Criminal Trespass in the Third Degree (PL § 140.10(a)), and Trespass (PL § 140.05), moves for an order dismissing the information pursuant to CPL § 30.30.
After a careful review of the defendant's motion and the People's response, the motion to dismiss is denied; the court finds that eighty-three (83) chargeable days have accrued since arraignment.
On September 30, 2016, the defendant was arraigned on a felony complaint charging him with Burglary in the Third Degree (PL § 140.20), Grand Larceny in the Third Degree (PL § 155.35(1)), Criminal Possession of Stolen Property in the Third Degree (PL § 165 .50), Grand Larceny in the Fourth Degree (PL § 155.30(1)), and Criminal Possession of a Stolen Property in the Fourth Degree (PL § 165.45(1)) as well as the misdemeanor charges set forth above. On December 5, 2016, all the felony charges were dismissed on the motion of the People. Pursuant to CPL § 30.30(5)(c), when a felony complaint has been replaced with a misdemeanor information, the People must be ready for trial within 90 days of filing the new instrument or six months from the filing of the original instrument, whichever time period is shorter. Here, the shorter time period is 90 days from the filing of the misdemeanor information. Accordingly, the People must be ready within 90 days of reduction of the felony complaint to a misdemeanor information, and the time elapsed from September 30, 2016 to December 5, 2016, is not part of the speedy trial calculation.
The parties' calculations are in agreement on most of the adjournment periods and differ only, albeit substantially, with respect to the December 5, 2016, and March 15, 2017, adjournments. Both parties concur that the includable time from all of the other adjournments totals 48 days.
Both sides agree that the following time periods are chargeable to the People: January 6, 2017 to February 22, 2017—14 days; February 22, 2017 to March 15, 2017—14 days; April 19, 2017 to May 2, 2017—13 days; May 2, 2017 to June 7, 2017—7 days.
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The adjournment from December 5, 2016 to January 6, 2017
On December 5, 2016, when the felony charges were dismissed, the People served and filed the necessary supporting affidavits and, significantly, stated their readiness for trial. The defendant waived hearings and discovery by stipulation thus placing the case in a trial ready posture. The defendant apparently stood silent as to his own readiness for trial. The matter was adjourned to January 6, 2017, for trial. The defendant argues that this entire adjournment period should be charged to the People. The People argue that they declared their readiness for trial and therefore should not be charged with this adjournment.
While it is generally accepted that the People are entitled a reasonable time to prepare for hearings and trial after a court rules on an omnibus motion, the rule is less clear in this county with respect to adjournments following a defendant's waiver of hearings and discovery. See, People v. Green, 90 A.D.2d 705, 455 N.Y.S.2d 368 (1st Dept 1995) ; People v. Wells, 16 A.D.3d 174, 791 N.Y.S.2d 34 (1st Dept 2005), People v. Chardon, 83 A.D.3d 954, 955, 922 N.Y.S.2d 127 (2nd Dept 2011). While this appears to be an issue of first impression in Kings County, courts in other jurisdictions, most notably New York County, have explored the issue and have established a body of case law that this court finds persuasive. See, People v. Santiago, 147 Misc.2d 143, 555 N.Y.S.2d 569 (Crim Ct, N.Y. County 1990) ; People v. Schneck, 20 Misc.3d 1146A (Crim Ct, N.Y. County, 2008); People v. Sheehan, 39 Misc.3d 695, 962 N.Y.S.2d 886 (Crim Ct, N.Y. County 2013) ; People v. Kerley, 46 Misc.3d 1223A (Crim Ct, N.Y. County 2015). These courts have held that, unlike the reasonable time to prepare which is granted to the People after hearings have been ordered, the time period after the defendant waives motions (or hearings and discovery) is not an adjournment resulting from motion practice and, therefore, is not excludable under CPL 30.30(4)(a). Santiago at 144–145, 555 N.Y.S.2d 569 ; Schneck at 4; See, People v. Collins, 82 N.Y.2d 177, 181, 604 N.Y.S.2d 11, 624 N.E.2d 139 (1993). An adjournment that is expressly not for the purpose of filing or deciding motions is chargeable until the People declare their readiness to proceed to trial. Id. As the Schneck court succinctly stated, "all time is chargeable to the People unless subject to an exclusion." Schneck at 3.
In Santiago and Schneck, the People's failure to announce their readiness and the absence of a statutory exclusion resulted in time being charged against the People. However, applying the sound reasoning of these cases to the matter before this court requires a different result due to the fact that the People did indeed declare that they were ready for trial on December 5. The defendant is correct that this adjournment was not caused by the defense and he is correct that by stating his intent not to make motions and proceed directly to trial, the defendant placed the burden on the People to state their readiness for trial within the statutory time period. By declaring their readiness for trial on December 5, the People met their initial speedy trial burden to be ready before 90 days had elapsed, making this post-readiness adjournment excludable. Had the People not announced ready on December 5, this adjournment would have been fully chargeable to them following the holdings and reasoning of Santiago and Schneck. Since the People were ready on December 5, it is apparent that if the defendant had also announced ready that day, the case would have gone to trial immediately. Thus, the entire period of adjournment from December 5, 2016 to January 6, 2017 is excludable.
The adjournment from March 15, 2017 to April 19, 2017
On March 15, 2017, the People were not ready for trial because the complainant was not available. The presiding judge ruled that the People would be charged until they served and filed a statement of readiness, and the matter was adjourned to April 19, 2017. On March 31, 2017, the People filed an off-calendar statement of readiness with the court and served it on the complainant's civil attorney, and not on the defendant's criminal attorney of record.
To stop the speedy trial clock, an off-calendar statement of readiness must be served on defense counsel and filed with the court. People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985). Here, by mistakenly serving the statement of readiness on the incorrect party's attorney and not on the defendant's attorney of record, the People never effectively notified the defendant of their readiness to proceed to trial. Consequently, their filing had no legal affect. See, People v. Telemaque, 36 Misc.3d 1239A (Crim Ct, Kings County, 2012); People v. Chittumuri, 189 Misc.2d 743, 736 N.Y.S.2d 581 (Crim Ct Queens County, 2001) ; People v. Stewart, 21 Misc.3d 1109A (Crim Ct N.Y. County 2008). Therefore, the entire period of 35 days from March 15 to April 19, 2017, is includable against the People's speedy trial time.
When these 35 days of includable time are added to the 48 days on which the parties agree, the time chargeable to the People totals 83 days.
Conclusion
Accordingly, the court finds that 83 chargeable days have accrued since the defendant's arraignment. The defendant's motion to dismiss is therefore denied.
This constitutes the decision and order of the court.