Opinion
2014NY019748
05-26-2015
The People of the State of New York v. Charles Debellis, Defendant
ADA Jamie Perrone District Attorney's Office New York County 1 Hogan Place New York, NY 10013 Defense Counsel: Richard Palma, Esq. 11 Park Place, Suite 1715 New York, NY 10007
ADA Jamie Perrone
District Attorney's Office
New York County1 Hogan Place
New York, NY 10013
Defense Counsel:
Richard Palma, Esq.
11 Park Place, Suite 1715
New York, NY 10007
Lisa A. Sokoloff, J.
Defendant Charles Debellis moves for dismissal of the accusatory instrument charging him with violating Penal Law (PL) § 120(1) assault in the second degree, a class D felony, on the grounds that the People have failed to be ready for trial within the period permitted them under Criminal Procedure Law (CPL) §§ 170.30(1)(e) and 30.30(1)(b).
Defendant contends that a total of 281 days of speedy-trial time is chargeable to the People. The People oppose and contend that 168 days of chargeable speedy-trial time have elapsed in this case. The court disagrees with both parties and finds that only 86 days of chargeable time has elapsed. For the reasons that follow, Defendant's motion to dismiss is DENIED.
CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action (see CPL 30.30[1]). Under CPL 30.30(1), the People have six months to announce readiness in a felony prosecution, 90 days when the most serious offense is a class A misdemeanor, 60 days for most other misdemeanors and 30 days when the most serious offense charged in the criminal action is a violation. An action is commenced upon the filing of the first accusatory instrument (CPL 1.20[17]; 100.05).
However, if a criminal action is commenced by the filing of a felony complaint, and thereafter, the felony complaint is reduced to a misdemeanor complaint, then, according to 30.30(5)(c), the period within which the People have to announce ready is the period applicable to the new charge, unless, when added to the period of time already elapsed in the prosecution (absent excludable time), the time will exceed six months, in which event, the period applicable to the charge in the felony complaint (six months) remains applicable, notwithstanding the reduction (see People v Cooper, 98 NY2d 541 [2002]).
A defendant seeking a speedy trial dismissal pursuant to CPL 30.30 meets his or her initial burden on the motion simply "by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v Luperon, 85 NY2d 71, 77-78 [1995]).
Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating their entitlement to a statutory exclusion for some, if not all, of the period of delay at issue (People v Cortes, 80 NY2d 201 [1992]). Moreover, the People are required to ensure a sufficiently clear record of the proceeding to permit the Court to make an informed decision as to whether the People should be charged the time between the appearance date and the adjourned date (Id., at 215).
Having reviewed the parties' submissions and the court file, the Court will address each adjournment period. March 13, 2014 — June 16, 2014 (0 days charged) On March 13, 2013, Defendant was arraigned on a felony complaint and the case was adjourned to June 16, 2014 to Part F for grand jury action. By email dated March 14, 2014 to the assigned assistant district attorney, defense counsel explicitly waived the speedy-trial time for this period. Defense counsel may validly waive a client's statutory speedy trial right by so notifying the People in writing during the course of on-going plea bargaining negotiations (People v Waldron, 6 NY3d 463 [2006]). June 16, 2014 — July 30, 2013 (44 days charged) On June 16, 2014, there was no grand jury action and the case was adjourned to July 30, 2014. This period is chargeable to the People. July 30, 2014 — November 13, 2014 (41 days charged) On July 30, 2014, there was no grand jury action and the case was adjourned to November 13, 2014 to Part 2F. At the People's request, the case was advanced to September 9, 2014. The 41-day period from July 30, 2014 to September 9, 2014 is chargeable to the People. September 9, 2014 — October 22, 2014 (0 days charged) On September 9, 2014, the felony assault charge was reduced to a misdemeanor, deemed converted, and the People answered ready for trial. The People are considered to be ready for trial when they 1) communicate their actual readiness in open court or file a certificate of actual readiness with the court and serve a copy on the defense counsel and 2) are in fact ready to proceed at the time they declare readiness ( People v Kendzia, 64 NY2d 331 [1985]).
The court then set a motion schedule and adjourned the matter to October 22, 2014 to Part C for decision on the motions. This period is excludable under CPL § 30.30(4)(a) as an adjournment for the purpose of defense motions (Worley, 66 NY2d at 525; People v Campos, 124 AD3d 434 [1st Dept 2015]).
CPL 30.30(5)(c) was implicated here when the felony complaint was reduced to a misdemeanor and converted to an information three months after the filing of the initial accusatory instrument. By operation of that provision, the period within which the People were to be ready for trial was reduced to 90 days, running from the date of the reduction. In effect, the date of the reduction became the action's new date of commencement for purposes of determining the appropriate CPL § 30.30(1) time frame.
However, the new time period does not apply if the unexcused delay between the filing of the original complaint and the reduced charge, plus the new time period, exceeds six months when considering dismissal, or 90 days when considering pretrial release.
Here, Defendant is out on bail, so the aggregate time period may not exceed six months. The unexcused delay between the filing of the original complaint (March 13, 2014) and the reduced charge (September 9, 2014) is 85 days. When aggregated with the new 90-day time period, the total is 175 days. Since 175 days is less than six months, the new 90-day time period is applicable to the instant case. October 22, 2014 — December 3, 2014 (0 days charged) On October 22, 2014, the People consented to Defendant's request for a pre-trial suppression hearing on the out-of-court lineup identification and the matter was adjourned to December 3, 2014 on consent of the parties. This period is excludable as motion practice pursuant to CPL § 30.30(4)(a) (People v Worley, 66 NY2d 523, 527 [1985]). December 3, 2014 — January 15, 2015 (43 days charged) The People were not ready and the case was adjourned for hearing and trial. This period is chargeable to the People. January 15, 2015 — February 9, 2015 (0 days charged) The People were ready for hearing and trial, but agreed with defense counsel to a consent adjournment. This period is excludable (CPL § 30.30[4][b]; People v Worley, 66 NY2d 523 [1985]; People v Brown, 110 AD3d 481 [1st Dept 2013]). February 9, 2015 — March 12, 2015 (31 days charged) The People were not ready for hearing and trial, and a new trial date was set. This period is chargeable to the People (CPL § 30.30[4][a]). March 12, 2015 — April 13, 2015 (12 days charged) The People were again not ready for hearing and trial, and a new trial date was set. In the interim, the People declared their readiness for trial by serving and filing a certificate of readiness off-calendar, on March 24, 2015. The certificate of readiness "serves to toll the speedy trial clock' from running for the remainder of the adjournment period" ( People v Stirrup, 91 NY2d 434, 439-440 (1998). Thus, the 12 day period from March 12, 2015 to March 24, 2015 is charged to the People. April 13, 2015 — May 12, 2015 (0 days charged) The People announced ready for hearing and trial and Defendant filed the instant 30.30 motion. May 12, 2015 — June 10, 2015 (0 days charged) The People served and filed their affirmation in response to Defendant's motion to dismiss.
Total Days Chargeable to the People Post-Reduction: 86 Days
Although 171 days have elapsed since the filing of the felony complaint, the People are charged with only 86 days from the reduction to a misdemeanor, and therefore have not exhausted the 90 days afforded by CPL § 30.30(1)(b) and 30.30(5)(c). Accordingly, Defendant's motion to dismiss the accusatory instrument is denied.
This opinion constitutes the decision and order of the court. A copy of the decision will be mailed to the parties and placed in the court file.
Dated:May 26, 2015
New York, New York
E N T E R:
_________________________
Lisa A. Sokoloff, J.C.C.