Opinion
Docket No. CR-001372-20NY
10-01-2021
The PEOPLE of the State of New York, Plaintiff, v. David COLLADO, Defendant.
For the defendant: Legal Aid Society, Joseph Frumin for defendant For the People: Cyrus R. Vance, District Attorney, New York County (Diane Eze of counsel)
For the defendant: Legal Aid Society, Joseph Frumin for defendant
For the People: Cyrus R. Vance, District Attorney, New York County (Diane Eze of counsel)
Robert Rosenthal, J.
The following documents were considered on review of this motion:
1. Defendant's Notice of Motion to Dismiss the accusatory instrument pursuant to CPL 30.30 and 170.30(1)(e) and other relief, dated August 24, 2021;
2. Defendant's Affirmation in support of Notice of Motion, dated August 24, 2021;
3. People's Affirmation in Response to Defendant's Motion, served and filed September 15, 2021;
4. Defendant's Affirmation and Reply to Prosecution's Response to Defendant's Motion to Dismiss, dated September 28, 2021.
On January 17, 2020, defendant was arraigned on a misdemeanor accusatory instrument and charged with violating Forcible Touching ( Penal Law § 130.52[1] and [2] ) and Sexual Abuse in the Third Degree ( Penal Law § 130.55 ). By Notice of Motion, dated August 24, 2021, defendant moves for an order dismissing the charges based on the People's failure to be ready for trial pursuant to Criminal Procedure Law 30.30. The most serious charge against defendant is an A misdemeanor, punishable by a sentence of imprisonment of more than three months. Accordingly, the People are required to be ready for trial within 90 days of the commencement of the action, absent excludable time ( CPL 30.30 [1] ). The court finds that 248 days are charged to the People in this case. For that reason, defendant's motion to dismiss is granted.
Facts
The complaint was deemed an information at defendant's arraignment. A motion schedule was set and the case was adjourned to February 25, 2020 for decision on defendant's omnibus motion. That time period is excludable for motion practice ( CPL 30.30 [4][a] ).
On January 31, 2020, off calendar, the People filed and served a certificate of compliance (COC), a Rosario and Discovery List, and an Automatic Discovery Form. On that date, the People also filed a paper entitled "Certificate of Readiness" (COR). As is discussed more fully below, and as is undisputed, that paper was not a valid COR, as the People failed to include in it the certification to the facial sufficiency of the accusatory instrument required by CPL 30.30 (5-a).
On February 5, 2020, the court granted Dunaway and Huntley hearings, and adjourned the matter to March 25, 2020 for hearings and trial. There is no indication in the court file, and the People have not so argued, that a valid statement of readiness containing the required CPL 30.30 (5-a) certification was tendered on February 5, 2020, either by a proper COR or an oral statement of readiness. Regardless of any issues concerning statements of readiness, the time between February 5th and March 25, 2020—the period immediately following decision on motions—is not chargeable to the People ( CPL 30.30 [4][a] ; Matter of People ex rel. LaBrew v Vance, 192 AD3d 645 [1st Dept 2021] ; People v Moolenaar, 262 AD2d 60 [1st 1999] ).
Between March 24, 2020 and December 22, 2020, the case was administratively adjourned due to the COVID-19 pandemic. Additionally, a series of Governor Cuomo's Executive Orders suspended the CPL § 30.30 accrual of chargeable time from March 20, 2020 through October 4, 2020.
The parties next appeared before the court on December 22, 2020, and again on February 3, 2021, March 9, 2021, and May 4, 2021. On each of those dates, the People announced ready for trial. Never during that time did the People tender a valid COR or oral statement of readiness—containing the required CPL 30.30 (5-a) certification.
At a June 9, 2021 adjourn date, the People were not ready for trial. The case was adjourned to August 25, 2021 for trial.
The following day, June 10, 2021, the People filed a Certificate of Readiness that contained the CPL 30.30 (5-a) certification.
On August 25, 2021, the People reaffirmed their readiness for trial. Defendant's instant motion to dismiss was filed the same day. The matter was adjourned to October 1, 2021 for decision.
In their motion, the People refer to a supplemental COC filed on September 15, 2021 "in full satisfaction of CPL 30.30 (5-a)." That was subsequent to the June 10, 2021 COR which stopped the CPL 30.30 clock. Thus, it has no bearing on this motion.
The Instant Motion
Defendant moves to dismiss the accusatory instrument because: a) the People failed to disclose necessary documents pursuant to CPL Article 245; and b) the People's original COR was invalid pursuant to CPL 30.30 (5-a).
Alleged Failure to Disclose Certain Documents
Defendant's request to dismiss for the People's failure to provide certain documents is denied. Defendant does not suggest what provision of article 245 might require disclosure of the particular documents sought—which concern defendant's pedigree, criminal history, and previous contacts with law enforcement. The court finds no such requirement.
To the extent that information in the particular documents might fall under CPL 245.20 (p), the court notes that a record of judgments of conviction is contained in the RAP sheet which was provided at the outset of the case.
The People's Failure to Provide Valid Notice of Readiness for Trial
Pursuant to CPL 30.30 (5-a) :
"a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of [ CPL 100.15 and 100.40 ] and those counts not meeting the requirements of [those sections] have been dismissed" ( CPL 30.30 [5-a] ).
Its title notwithstanding, the paper filed by the People on January 20, 2020 was not a valid COR, as it did not contain any part of the CPL 30.30 (5-a) certification. In its entirety, the People's purported COR stated:
"[the assigned prosecutor] hereby certifies that the People are ready for trial in the above-entitled action."
Over the next 17 months, including five court appearances, the People never tendered a valid written or oral statement of readiness containing the CPL 30.30 (5-a) certification. It was not until June 10, 2021, after answering "not ready" the day before, that the People filed a COR that contained the required certification. By that time, 248 days chargeable to the People had elapsed.
In their opposition to defendant's motion, the People do not claim to have made a valid statement of readiness prior to June 10, 2021. Nor do the People dispute that chargeable time would begin to run on October 5, 2020 with the lifting of the stay imposed by the Governor's Executive Order. Rather, they argue that by filing a proper COR on June 10, 2021, well after the statutory time to tender a valid statement of readiness had expired, the People retroactively validated the purported COR filed a year-and-a-half earlier on January 31, 2020. The People's argument is unavailing for several reasons. First, it is contrary to the plain language of CPL 30.30 (5-a) which states a COR "shall not be valid" absent the certification. Simply, for lack of that certification, the purported COR was not valid when filed. Accrual of time charged to the People commenced on October 5, 2020. Thus, ninety chargeable days had elapsed by January 3, 2021, at which time, CPL 30.30 dismissal was required. That the People properly filed a COR more than five months after that date has no bearing on the time charged through then.
The court has considered the decisions of courts of concurrent jurisdiction supplied by the People in support of their retroactive-validation argument (i.e. , People v Lewis , Dkt No. CR-037314-19KN [Crim Ct, Kings County 2021] ; People v Aviles, Dkt No. CR-020412-20KN [Crim Ct, Kings County 2021] ). The court respectfully declines to follow those decisions. The court finds more persuasive the decisions holding that the accrual of chargeable time may be tolled only when the People properly tender a statement of readiness (i.e. , People v Herrera, 2021 NY Slip Op 21226 [Crim Ct, Bronx County 2021] ; People v Lavrik, 72 Misc 3d 354 [Crim Ct, NY County 2021] ; People v Lopez, Decision and Order, Dkt. No. CR-001527-20NY [Crim Ct, NY County 2021 (Chu, J.)]; People v Ramirez-Correa , 71 Misc 3d 570 [Crim Ct, Queens County 2021] ; People v Ross, Decision and Order, Dkt. No. CR-025918-19NY [Crim Ct, NY County 2020 (Gaffey, J.)]).
Second, the retroactive-validation rule urged by the People would undermine the CPL 30.30 "speedy trial; time limitations" statute by obviating the requirement of a timely statement of readiness. Such a rule would enable the People to declare retroactive-readiness at any time up until the commencement of trial, without regard to the express time constraints of CPL 30.30(1). As a result, defendants would be denied the protections of CPL 30.30 (5) and (5-a) —that the People are timely ready for trial, that the accusatory instrument is limited to counts that are facially sufficient and supported by non-hearsay allegations pursuant to CPL 100.15 and 100.40, and that all discovery has been provided pursuant to CPL 245.20. The court declines to adopt the People's retroactive-validation statutory interpretation that would so undermine the provisions of CPL 30.30, particularly in light of the fact that by enacting subdivision (5-a), the legislature enhanced the already existing protections of that statute. It should be noted also that the People's omission of the certification language was undoubtedly a result of the newness of the statute, effective a mere 30 days at the filing of the purported COR here. The number of cases of that vintage, in which similarly invalid CORs might have been filed and left to languish until dismissal, is too limited to justify an erosion of the CPL 30.30 protections.
For these reasons, the People's argument is unavailing. The People did not tender a valid statement of readiness until 248 days of chargeable time had elapsed. Defendant's motion is granted.
The foregoing constitutes the decision and order of the court.