Opinion
No. 2010NA005131.
2011-02-10
The PEOPLE of the State of New York, v. Douglas FLYNN, Defendant.
Hon. Kathleen Rice, Nassau County District Attorney. Joseph G. Sulik, Esq, Attorney for Defendant.
Hon. Kathleen Rice, Nassau County District Attorney. Joseph G. Sulik, Esq, Attorney for Defendant.
ANDREW M. ENGEL, J.
The Defendant is charged with Driving While Intoxicated, in violation of VTL § 1192(2), along with eight (8) traffic infractions. He now moves, pursuant to CPL § 30.30 to dismiss the above specified charge against him, alleging that he has been denied his statutory right to a trial within the specified statutorily prescribed time.
Driving While Intoxicated being a misdemeanor punishable by a term of imprisonment of up to one (1) year, the motion must be granted if the People are not ready for trial within ninety (90) days of the commencement of the criminal action. CPL § 30.30(1)(b)
The Defendant alleges that the People should be charged with one hundred six (106) days of delay from June 24, 2010 through October 21, 2010. Alternatively, the Defendant argues that, if the court accepts the People's filing of a Certificate of Readiness on September 13, 2010 as valid, then the People should be charged with ninety six (96) days of delay. The Defendant does not suggest that any days prior to June 24, 2010 are to be charged to the People.
For the first time in his reply papers the Defendant alleges that the People should be charged with an additional eighteen (18) days of delay, between December 17, 2010 and January 4, 2011, due to the People's failure to serve and file their opposition papers in accordance with the court's direction, which had already extended their time to serve and file their opposition. Given the fact that this argument is raised for the first time in reply and the People have not had an opportunity to address this issue the court shall not consider these dates at this time. See: Angwin v. SRF Partnership, LP, 28 AD3d 593, 813 N.Y.S.2d 773 (2nd Dept.2006); Wright v. Cetek, Technologies, Inc., 289 A.D.2d 569, 735 N.Y.S.2d 804 (2nd Dept.2001)
The People argue that they are to be charged with thirty eight (38) days of delay between June 24, 2010 and October 2, 2010.
The Defendant does not contest, and thereby concedes, the People's representation that the People declared their readiness for trial at the time of the Defendant's arraignment on February 27, 2010. People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704 (1977); People v. Ciaccio, 47 N.Y.2d 431, 418 N.Y.S.2d 371 (1979); People v. Wright, 86 N.Y.2d 591, 635 N.Y.S.2d 136 (1995) In fact, the record of that arraignment confirms the People's representation.
The People's declaration of readiness does not mean that they have witnesses standing outside the courtroom, or immediately available for trial. People v. Camillo, 279 A.D.2d 326;719 N.Y.S.2d 239 (1st Dept.2001); People v. Dushain, 247 A.D.2d 234, 669 N.Y.S.2d 30 (1st Dept.1998)lv. den.91 N.Y.2d 1007, 676 N.Y.S .2d 135 (1998) Their declaration of readiness means that they have done all that is required of them to bring the case to a point where it may be tried, that there is no legal impediment to the matter proceeding to trial and that the People are willing to proceed to trial. People v. England, 84 N.Y.2d 1, 613 N.Y.S.2d 854 (1994); People v. Beasley, 69 AD3d 741, 893 N.Y.S.2d 201 (2nd Dept.2010) The Defendant does not argue that the People's declaration of readiness at his arraignment was illusory or made in bad faith; nor, under the facts presented herein, does the court find it to be such. Under these circumstances, the periods in question in determining this motion are considered to be “postreadiness” delays. The significance of this finding is that the People will only be charged with those periods of delay which are solely the result of the People's conduct. People v. Anderson, 66 N.Y.2d 529, 498 N.Y.S.2d 119 (1985); People v. Cortes, 80 N.Y.2d 201, 590 N.Y.S.2d 9 (1992); People v. Sawh, 58 AD3d 760, 870 N.Y.S.2d 803 (2nd Dept.2009) The People shall not be charged with periods of delay not of their making and outside their control, i.e. calendar congestion or the convenience of the court. People v. Gross, 87 N.Y.2d 792, 642 N.Y.S.2d 607 (1996); People v. Sebak, 245 A.D.2d 242, 667 N.Y.S.2d 46 (1st Dept.1997)lv. den.91 N.Y.2d 945, 671 N .Y.S.2d 725 (1998); People v. Rivera, 223 A.D.2d 476, 637 N.Y.S.2d 77 (1st Dept.1996)lv. den.88 N.Y.2d 852, 644 N.Y.S.2d 698 (1996) With this understanding, the court makes the following determinations with regard to the dates here in issue:
June 24, 2010 through July 21, 2010
On May 28, 2010, with the People's consent, the court set this matter down for a Mapp/Huntley/Dunaway
hearing to be held on June 24, 2010. On June 24, 2010 the People were not ready to proceed with the hearing and requested an adjournment of two (2) weeks. The court adjourned the hearing to July 21, 2010. In the interim, on July 12, 2010 the People filed a Certificate of Readiness.
Mapp v. Ohio, 367 U.S. 643;81 S.Ct. 1684 (1961); People v. Huntely, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965) and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979)
The People argue that they should only be charged with the eighteen (18) days between June 24, 2010 and their filing of the Certificate of Readiness on July 12, 2010. The Defendant argues that the People should be charged with the entire period of the adjournment. They are both mistaken.
As indicated, the People previously declared their readiness for trial on February 27, 2010. They are not required to repeatedly declare their readiness, unless there has been a substantial break in the prosecution of the action. People v. Reed, 19 AD3d 312, 798 N.Y.S.2d 47 (2005)lv. den.5 NY3d 832, 804 N.Y.S.2d 46 (2005); People v. Reid, 214 A.D.2d 396, 625 N.Y.S.2d 171 (1st Dept .1995) As indicated hereinabove, being in a “postreadiness” posture, while the People were not ready to proceed with the scheduled hearing, they shall only be charged with the actual number of days they requested. People v. Williams, 32 AD3d 403, 821 N.Y.S.2d 604 (2nd Dept.2006); People v. Hodges, 12 AD3d 527, 784 N.Y.S.2d 638 (2nd Dept.2004)
Accordingly, the People will be charged with the two (2) weeks, or fourteen (14) days they requested between June 24, 2010 and July 8, 2010.
July 21, 2010 through through August 31, 2010
Contrary to the Defendant's representation, the minutes provided by the People demonstrate that this adjournment was at the request of the Defendant. Accordingly, these days shall be excluded. CPL § 30.30(4)(b)
August 31, 2010 through September 24, 2010
The People were not ready for the scheduled hearing and requested a two (2) week adjournment. The hearing was adjourned to September 24, 2010. Again the People unnecessarily filed another Certificate of Readiness in the interim on September 13, 2010. As indicated hereinabove, the People shall be charged with the time they requested, two (2) weeks, or fourteen (14) days.
September 24, 2010 through October 21, 2010
On September 24, 2010 the People again were not ready to proceed with the hearing and requested an adjournment to October 1, 2010. On October 8, 2010 the Defendant filed the present motion, rendering the remaining time during this period excludable. CPL § 30.30(4)(a) Nevertheless, the People shall be charged with the seven (7) days they requested.
Based upon all of the foregoing, the People shall be charged with a total of thirty five (35) days. The court would note that even if the People were to be charged with the eighteen (18) days between December 17, 2010 and January 4, 2011, as the Defendant argues in his reply, the People would only be charged with a total of fifty three (53) days.
Accordingly, the Defendant's motion to dismiss is denied.
The parties should be prepared to proceed with the Mapp/Huntley/Dunaway hearing on the next calendar date of March 31, 2011.
This constitutes the decision and order of this court.