Opinion
No. 2019-1098 Q CR
09-02-2022
The People of the State of New York, Respondent, v. Michael Dollison, Appellant.
Appellate Advocates (Emily T. Lurie of counsel), for appellant. Queens County District Attorney (Johnnette Traill and Aaron Spurlock of counsel), for respondent.
Unpublished Opinion
Appellate Advocates (Emily T. Lurie of counsel), for appellant.
Queens County District Attorney (Johnnette Traill and Aaron Spurlock of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Karen Gopee, J.), rendered May 14, 2019. The judgment convicted defendant, upon a jury verdict, of petit larceny and criminal possession of stolen property in the fifth degree, and imposed sentence. The appeal brings up for review so much of an order of that court (Toni M. Cimino, J.) dated October 11, 2018 as, upon reargument, adhered to a prior determination of that court (Toni M. Cimino, J.) in an order dated May 24, 2018 denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.
ORDERED that the judgment of conviction is reversed, on the law, and, upon reargument, defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is granted.
Defendant was charged with petit larceny (Penal Law § 155.25) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40), and, after a jury trial, defendant was convicted of both counts and sentence was imposed.
On appeal, defendant contests, among other things, an order of the Criminal Court (Toni M. Cimino, J.) dated October 11, 2018, which, upon reargument, adhered to that court's May 24, 2018 order (Toni M. Cimino, J.) denying defendant's April 9, 2018 motion to dismiss the accusatory instrument on statutory speedy trial grounds, finding that only 84 days were chargeable to the People, which is less than the 90 days allotted to them in this matter (see CPL 30.30 [1] [b]). Of particular relevance here is the period from January 12, 2018 through April 9, 2018. On January 12, 2018, the People answered not ready for trial. The Criminal Court (Toni M. Cimino, J.) adjourned the trial to February 20, 2018 and required the People, who had previously declared readiness, to file and serve a certificate of readiness (CoR) in order to stop the statutory speedy trial clock. On February 20, 2018, the prosecutor answered not ready and requested a one-week adjournment. The trial was adjourned to April 11, 2018, and the court (Jerry M. Iannece, J.) told the prosecutor that, if the People were not ready on that date, "I will charge you with all time until you are ready." The April 11 trial date was adjourned because defendant filed his initial speedy trial motion on April 9, 2018. In denying the motion and finding that the People were chargeable with a total of 84 days, the court charged the entire 39-day period of January 12-February 20, 2018, but only charged the 7 days requested by the People for the period of February 20-April 9, 2018, rather than charging the full time through April 9, 2018.
On appeal, defendant argues, among other things, that, because the People did not file a CoR in accordance with the Criminal Court's January 12, 2018 directive, all time from January 12 to April 9, 2018 should have been charged. The People respond that, because defendant did not mention on February 20, 2018 that the People were still required to file a CoR when the prosecutor answered not ready and requested a one-week adjournment, and the court did not refuse the People's request, the People were no longer bound by the court's January 12, 2018 order. We disagree.
The People were given a clear, unequivocal, and reasonable order on January 12, 2018 to provide a CoR in order to stop the statutory speedy trial clock from running. The prosecutor failed to abide by this requirement, and neither the court's apparent unawareness thereof on February 20, 2018 nor defendant's admittedly involved participation that day in setting the next adjournment date on April 11, 2018 absolved the People of this CoR obligation. Consequently, all the time from February 20 to April 9, 2018 should have been charged, not just the 7 days the People requested. Therefore, an additional 41 days (not including the 7 days already accounted for in the court's total) must be added to the People's chargeable time, which results in the People being charged with a total of 125 days (84 + 41). As there were more than 90 chargeable days in this case, dismissal of the accusatory instrument is mandated. Defendant's other appellate contentions are rendered academic, and we decline to address them.
Accordingly, the judgment of conviction is reversed and, upon reargument, defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is granted.
WESTON, J.P., and TOUSSAINT, J., concur.
GOLIA, J., dissents and votes to affirm the judgment of conviction in the following memorandum:
After having previously announced their readiness, the People declared in court on January 12, 2018 that they were not ready to proceed to trial and requested a one-week adjournment to January 19th. The Criminal Court (Toni M. Cimino, J.), explaining that "the People answered not ready on the last occasion and also requested a very short adjournment," upon granting the People's request for an adjournment, stated that the statutory speedy trial clock would run until the People filed a Certificate of Readiness (CoR) to stop it. On the next appearance date, February 20, 2018, the People, who had not filed a CoR in the interim, again announced their nonreadiness to proceed and requested a one-week adjournment. The court (Jerry M. Iannece, J.) adjourned the matter to April 11, 2018 but directed the People "to be ready [for trial] on this one. You have to be ready.... You are not ready today. Next time I will charge you with all time until you are ready" (emphasis added). On April 9, 2018, defendant made his initial speedy trial motion which was denied by the court (Toni M. Cimino, J.) by order dated May 24, 2018. The court charged the People with a total of 84 days, which included the entirety of the January 12-February 20, 2018 adjournment period (39 days) and only the 7 days requested by the People for the time period between February 20 and the April 9, 2018 motion. Upon reargument, the May 24, 2018 determination was adhered to by order (Toni M. Cimino, J.) dated October 11, 2018.
Defendant first argues, in effect, that the court's January 12, 2018 order directing the People to file a CoR to stop the speedy trial clock was the law of the case and therefore governed the February 20-April 9, 2018 period. Defendant submits that, since the People had not filed a CoR, the court improvidently exercised its discretion by charging only seven days of this adjournment period instead of enforcing its own order by charging the entirety thereof against the People, which extra days cause the People to exceed their statutory speedy trial time.
Generally "law of the case does not apply when a court alters its own ruling, as opposed to the ruling of another court of coordinate jurisdiction" (Commercial Tenant Servs., Inc. v Northern Leasing Sys., Inc., 131 A.D.3d 895, 897 [2015] [internal quotation marks omitted]). Consequently, it was not an improvident exercise of discretion for Judge Cimino, who issued both the CoR requirement on January 12, 2018 and the October 11, 2018 order adhering to her prior order denying defendant's statutory speedy trial motion, to decline to enforce her own CoR ruling and instead charge only the seven-day adjournment that the People requested on February 20, 2018. Indeed, Judge Cimino's decision denying defendant's speedy trial motion was appropriate because, as Judge Cimino found, "the People may have reasonably relied upon" Judge Iannece's February 20, 2018 statement.
Contrary to defendant's other statutory speedy trial argument, the People's explanation that they were not ready to proceed to trial at the January 12 and February 20, 2018 court appearances because they were attempting to procure surveillance camera footage did not, without more, render their previous statements of readiness per se illusory. "There is nothing in CPL 30.30 to preclude the People from declaring their present readiness, but still gathering additional evidence to strengthen their case.... Here, the People could have tried this case on the basis of eyewitness testimony alone, and the wisdom of doing so is irrelevant for speedy trial purposes" (People v Wright, 50 A.D.3d 429, 430 [2008]; see People v Polanco, 54 Misc.3d 141 [A], 2017 NY Slip Op 50188[U], *1 [App Term, 1st Dept 2017] ["The People could legitimately declare their readiness while gathering additional evidence to strengthen their case"]).
I also find defendant's final point on appeal, that the verdict was against the weight of the evidence, to be without merit.
Accordingly, I vote to affirm the judgment of conviction.