Opinion
No. 6275/08.
2010-08-18
The PEOPLE of the State of New York v. Jay ELLISON and Nina Hadaway, Defendants.
Michael Brenner, Esq., Assistant District Attorney, Office of the Special Narcotics Prosecutor, New York, for the People. Terrence Grifferty, Esq., New York, for the Defendant Jay Ellison.
Michael Brenner, Esq., Assistant District Attorney, Office of the Special Narcotics Prosecutor, New York, for the People. Terrence Grifferty, Esq., New York, for the Defendant Jay Ellison.
Kevin M. Canfield, Esq., New York, for the Defendant Nena Hadaway.
LAURA A. WARD, J.
The defendants are charged with criminal sale of a controlled substance in the third degree, in violation of Penal Law § 220.39(1), and other crimes stemming from the execution of a search warrant on December 10, 2008. The defendants move, pursuant to Criminal Procedure Law (“C.P.L.”) § 30.30(1)(a), to dismiss the indictment. The defendants allege that the failure of the People to be ready for trial within six months of the commencement of this case violated their statutory right to a speedy trial.
C.P.L. § 30.30(1)(a) provides that the prosecution must be ready for trial within “six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony.” The action was commenced on December 11, 2008, when the defendants were arraigned on a felony complaint. Therefore, the six months within which the People were required to be ready to try the defendants is the equivalent of 182 days. People v. Cortes, 80 N.Y.2d 201(1992); People v. Bruno, 300 A.D.2d 93, 94 (2002).
In computing the six months within which the People must be ready for trial, subdivision 4 of C.P.L. § 30.30 provides for the exclusion of certain time periods.
Based on a review of the official court file, transcripts of proceedings held on September 14, 2009, December 14, 2009, January 19, 2010, February 1, 2010, March 8, 2010, and April 7, 2010, a laboratory report from the New York City Office of the Chief Medical Examiner, dated February 2, 2010, a hearing held by this court on August 17, 2010, and the arguments of the parties, I find as follows:
The defendants were arraigned on the felony complaint on December 11, 2008, and the case was adjourned to Part N for December 16, 2008. This period of five days is included in computing the time within which the People must be ready for trial.
On December 16, 2008, the People filed a Certificate of Affirmative Grand Jury Action, as to Nina Hadaway. Jay Ellison, pursuant to C.P.L. § 190.50(5), wanted to testify before the grand jury. In view of the fact that the People were unable to provide a time for Ellison to testify, they applied for a good cause extension. The court granted the good cause extension until the next day, December 17, 2008. On December 17, 2008, the grand jury indicted Ellison. The defendants next appeared in court, in Part 70, for arraignment on the indictment on January 12, 2009. This period of 27 days is included in computing the time within which the People must be ready for trial.
The period between January 12, 2009, and May 18, 2009, was devoted to the defendants' motions, the People's responses to those motions and decisions on the motions. This period is excluded pursuant to C.P.L. § 30.30(4)(a).
On May 18, 2009, the court adjourned Ellison's case to May 22, 2009, for hearing and trial and Hadaway's case to June 8, 2009, for the filing of a motion to controvert the search warrant. This period is excluded pursuant to C.P.L. §§ 30.30(a) and (d).
The period between June 8, 2009, and August 8, 2009, was devoted to Hadaway's motion to controvert, the People's response to the motion and decision on the motions. This period is excluded pursuant to C.P.L. §§ 30.30(4)(a) and (d).
On August 8, 2009, the court issued its decision denying on Hadaway's motion to controvert, but ordered a Darden hearing. The case was adjourned to September 14, 2009. This period is excluded pursuant to C.P.L. § 30.30(4)(a), and People v. Green, 90 A.D.2d 705 (1st Dept.1982).
On September 14, 2009, the People were not ready for trial. The case was adjourned to September 21, 2009. This period of seven days is included in computing the time within which the People must be ready for trial.
On September 21, 2009, Ellison filed a motion for release pursuant to C.P.L. § 30.30(2)(a). The case was adjourned to September 30, 2009, for response and decision. This period is excluded pursuant to C.P.L. § 30.30(4)(a).
On September 30, 2009, this court denied the defendant's motion for release pursuant to C.P.L. § 30.30(2)(a). The case was adjourned to October 19, 2009, for hearing and trial. This period is excluded pursuant to People v. Rowe, 227 A.D.2d 212, 213,lv. denied,88 N.Y.2d 993 (1996).
On October 19, 2009, the People were not ready for trial and the case was adjourned to November 17, 2009. However, on October 20, 2009, the People participated in a Darden hearing. Therefore, 28 days of this period is included in computing the time within which the People must be ready for trial.
On November 17, 2009, the People were not ready for trial. However, counsel for Hadaway was on trial and new counsel was to be assigned for Ellison. The case was adjourned to November 23, 2009. This period is excluded pursuant to C.P.L. §§ 30.30(4)(d) and (f); People v. Reed, 19 AD3d 312, 318,lv. denied,5 NY3d 832 (2005).
On November 23, 2009, new counsel for Ellison requested an adjournment to review the case. The case was adjourned to December 14, 2009. This period is excluded pursuant to C.P.L. §§ 30.30(4)(b) and (d); People v. Reed, 19 AD3d 312, 318,lv. denied,5 NY3d 832 (2005).
The major period in dispute is period between December 14, 2009, through April 7, 2010. The People argue that this period excludable as an exceptional circumstance, pursuant to C.P.L. § 30.30(4)(g).
At the hearing held on August 17, 2010, the People stated that a DNA swab from the gun recovered in this case, was sent to the Office of the Chief Medical Examiner (“OCME”) soon after the commencement of this action. The People stated that due to the bureaucracy at the OCME, as well as negligence on the part of the OCME, a preliminary report, indicating the presence of DNA on the gun was not received by the People until late April of 2009. The prosecutor, to his credit, candidly admitted, despite having this initial report in late April of 2009, that they did not make any further inquiries regarding the DNA, specifically whether it was male or female DNA until November of 2010. In late November, the People were informed that the DNA recovered from the gun was male. On December 14, 2009, the People filed and served an application for a bucal swab to be taken from Ellison. People Affirmation in Response, at ¶ 16. During the period between December 14, 2009, to April 7, 2010, the People were waiting for the results of the DNA comparison.
In a letter faxed to the court following the August 17, 2010, hearing, the People argued that had “the People been apprised that the request was untimely or the adjournment chargeable, the People would have proceeded to trial on the available evidence.” Initially I note that it is not the court's responsibility to tell the prosecution how to try its case. The People seem to suggest that the court should have been calculating the amount of time that they would be charged with pursuant to C.P.L. § 30.30, and inform the People, at the pre-trial, pre-motion stage how much time they had remaining on the so called speedy trial clock and to advise the People at each calendar call of the case whether an adjournment sought by them was includable or excludable. In People v. Berkowitz, 50 N.Y.2d 333, 349 (1980), the Court of Appeals stated that the determination of whether a period is to be included or excluded in deciding whether the time is counted towards the six months within which the People must be ready for trial pursuant to C .P.L. § 30.30(1)(a) is one which must be made following an adversarial proceeding at which the defendant has an adequate opportunity to contend that the time is not excludable. It may not be made by the court acting sua sponte and in the absence of the parties. Normally, moreover, it is a determination which is to be made when the defendant moves to dismiss on speedy trial grounds, and not at the time the adjournment is granted. This is so because there is no necessary connection between the validity of a particular ground for an adjournment and the question whether such a period is to be excluded in computing the six-month period pursuant to CPL 30.30.
Thus, the People's assertion that the court should have kept them fully apprised as to how much time would be included in determining the six months within they must be ready to try the defendants is lacking in merit.
The People, in possession of the preliminary report as of late April of 2009, admittedly did nothing to request information of the OCME with regard to the sex of the person whose DNA was found on the gun until November of 2009. While “a period of time necessary to obtain the results of DNA testing ... is excludable under the speedy trial statute as a “delay occasioned by exceptional circumstances” (People v. Robinson, 47 AD3d 847, 848,lv. denied,10 NY3d 869 (2008)), the period from December 14, 2009 through April 7, 2010, is includable. In view of the fact that the People had not acted on information available to them for approximately seven months, they should not now be allowed to rely on the “exceptional circumstances” exclusion provided by C.P.L. § 30.30(4)(g). Had the People been diligent in pursuing further results from the OCME, there would have been no need for the adjournments from December 14, 2009, through April 7, 2010, for the purpose of obtaining a DNA comparison from the OCME. In People v. Price, 14 NY3d 61, 64 (2010), the Court stated that “[i]t is clear, however, that the range of the ... application [of the term exceptional circumstance'] is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction.” Here the People failed to act in a timely fashion and therefore, the entire period of 114 days, from December 14, 2009, through April 7, 2010, is included in computing the time within which the People must be ready for trial.
On April 7, 2010, the People were not ready for trial because a necessary witness was unavailable. The case was adjourned to May 10, 2010. Therefore, this period is excluded pursuant to C.P.L. § 30 .30(4)(g); People v. McLeod, 281 A.D.2d 325, 327,lv. denied,96 N.Y.2d 904 (2001).
On May 10, 2010, the People were not ready and stated that they would be ready for hearing and trial on May 12, 2010. The case was adjourned to May 12, 2010. This period of two days is included in computing the time within which the People must be ready for trial.
On May 12, 2010, the defendants filed this motion to dismiss.
A total of 183 includable days have elapsed since the commencement of the action on December 11, 2008. Since more than six months have elapsed, the motion to dismiss the indictment is granted
The foregoing is the decision and order of the court.