Opinion
2018NY042848
01-22-2020
The PEOPLE of the State of New York, Plaintiff, v. Hardit GHAONBALHA, Defendant.
Vincent J. Martinelli, Staten Island, for defendant. Cyrus R. Vance, Jr., District Attorney, New York City (Andrew Keenan of counsel), for plaintiff.
Vincent J. Martinelli, Staten Island, for defendant.
Cyrus R. Vance, Jr., District Attorney, New York City (Andrew Keenan of counsel), for plaintiff.
Richard Tsai, J.
Defendant is charged along with a codefendant, Maury Noun, with two counts of assault in the third degree ( Penal Law § 120.00 [1], [2] ), one count of aggravated harassment in the second degree ( Penal Law § 240.30 [4] ), one count of attempted assault in the third degree (Penal Law § 110/120.00 [1] ), and one count of harassment in the second degree ( Penal Law § 240.26 [1] ). In this motion, defendant now moves to dismiss the accusatory instrument on speedy trial grounds. The People oppose the motion.
For the reasons below, defendant's motion to dismiss the accusatory instrument on speedy trial grounds is DENIED.
BACKGROUND
The accusatory instrument alleges, in relevant part, that on or about October 28, 2018, at about 1:45 a.m., in front of 150 Ludlow Street, in the County and State of New York, defendant Ghaonbalha and codefendant Noun pushed Andrew Stone down a flight of stairs, then punched and kicked him in his head and torso, causing him to bleed from his nose and mouth, as well as causing his head to swell, bruise, and bleed. The incident was witnessed by Zachary Bidwell, and the injuries were observed thereafter by Police Officer Hirwin Presida. Both defendants were arrested and arraigned on October 28, 2018. The arraignment court adjourned both cases to Part A on December 13, 2018, for the People to file and serve a supporting deposition.
On November 9, 2018, the People filed a supporting deposition along with a certificate of readiness off-calendar in both cases.
From December 13, 2018 until February 22, 2019, the court kept defendant Ghaonbalha's and codefendant Noun's cases together by adjourning each to the same date, except for a short adjournment in codefendant Noun's case that is not relevant here.
On December 13, 2018, the court acknowledged receipt of the People's off-calendar filings and deemed the accusatory instrument an information in both cases. The court then adjourned both cases to January 3, 2019, for possible disposition on consent.
On January 3, 2019, there was no disposition in both cases. Defendant Ghaonbalha filed and served an omnibus motion in court, whereas codefendant Noun waived motions. Accordingly, the court instructed the People to respond to defendant Ghaonbalha's omnibus motion off-calendar by January 17, 2019, and adjourned the case to January 22, 2019, for trial or hearings and trial. Codefendant Noun's case was adjourned to January 22, 2019 for trial.
The court did not set any off-calendar deadline for the court's decision on defendant Ghaonbalha's omnibus motion.
On January 22, 2019, new counsel appeared on behalf of defendant Ghaonbalha and adopted the pending omnibus motions filed and served by prior counsel. The People requested additional time to respond. The court adjourned the matter to February 22, 2019, for response and decision on defendant's omnibus motion. The court also excused defendant's appearance at the next court date. Meanwhile, in codefendant Noun's case, the People stated that they were not ready, and Noun's case was also adjourned to February 22, 2019, for trial.
On February 22, 2019, the People responded to defendant's omnibus motion. The court ordered suppression hearings and adjourned the matter to April 25, 2019, for hearings and trial. The court noted that defendant's appearance was excused but nevertheless stayed issuance of a bench warrant. Meanwhile, codefendant Noun's case was adjourned to April 1, for trial and adjourned again to April 25, 2019, for codefendant Noun to appear.
On April 25, 2019, the People announced that they were not ready for trial in both cases. In codefendant Noun's case, counsel for codefendant Noun stated his intention to file a motion to dismiss on speedy trial grounds. The court set a motion schedule, instructing codefendant to serve and file his motion off-calendar by May 21, 2019, and the People to serve and file their response off-calendar by June 7, 2019. The court then adjourned both matters to June 17, 2019, for hearings and trial.
The court did not set any off-calendar deadline for the court's decision on codefendant Noun's motion to dismiss on speedy trial grounds.
Codefendant Noun filed his motion to dismiss on speedy trial grounds on May 22, 2019, and the People filed their response on June 10, 2019.
On June 17, 2019, in defendant Ghaonbalha's case, the People announced that they were not ready for trial and requested an adjournment to June 21, 2019. However, the court adjourned both matters to July 24, 2019, for hearings and trial in defendant Ghaonbalha's case, and for a decision in codefendant Noun's case.
On July 24, 2019, the People announced that they were not ready for trial in defendant Ghaonbalha's case. As for codefendant Noun, the court denied his motion to dismiss on speedy trial grounds, and stayed a bench warrant. The court adjourned both matters to September 11, 2019, for hearings and trial.
On July 24, 2019, the court announced that the speedy trial motion was denied in open court, with a written decision to follow. The written decision is dated July 31, 2019.
On September 11, 2019, the People announced that they were not ready for trial on both matters and requested an adjournment to September 23, 2019. Defendant was not present. The court stayed a bench warrant and adjourned the case to October 15, 2019, for hearings and trial. Meanwhile, codefendant Noun had appeared in person, and his case was also adjourned to the same date for hearings and trial.
On October 15, 2019, the People announced that they were not ready for trial in both matters. Defendant was again not present. The court adjourned defendant Ghaonbalha's case to November 7, 2019 for hearings and trial or "30.30 dismiss[al]." Although the court excused defendant's appearance, it also stayed issuance of a bench warrant.
After October 15, 2019, codefendant Noun's case was adjourned to different dates. Codefendant Noun later plead guilty to Penal Law § 120.00 (1) on October 28, 2019, as part of a repleader agreement, the terms of which are not relevant here.
On November 7, 2019, defendant filed this motion to dismiss. The People announced that they were not ready for trial and requested and adjournment to November 13, 2019. The court adjourned the case to December 4, 2019, for the People's response.
On December 4, 2019, the People filed and served their response in court. This court adjourned the case to January 9, 2019, for decision on defendant's motion.
DISCUSSION
I. Motion to Dismiss pursuant to CPL 30.30
CPL 30.30 (1) (b) requires dismissal of an accusatory instrument when the People are not ready for trial within 90 days of the commencement of a criminal action where, as here, the charges carry the potential sentence of imprisonment of more than three months.
There are ten court appearances from the commencement of the action on October 28, 2018, through the filing of defendant's motion to dismiss on November 7, 2019. Those events span 374 calendar days. For the reasons set for below, the court finds that the People are charged, at most, a total of 35 days .
The parties agree that at least 12 days are chargeable to the People, as follows:
DATES INCLUDABLE TIME
October 28, 2018 to November 10, 2018 12 Days
The day on which the accusatory instrument is filed is excluded (People v. Stiles , 70 NY2d 765 [1987], citing General Construction Law § 20 ; see People v. DiMeglio , 294 AD2d 239, 240 [1st Dept 2002] ).
(see affirmation of defendant's counsel ¶ 9 [a]; see affirmation of the People in response to defendant's motion to dismiss ¶ 5 [i] ).
Defendant maintains that 88 additional days are chargeable to the People for the adjournments from June 17, 2019 until November 7, 2019 (see affirmation of defendant's counsel ¶¶ 9 [a] — [e] ). The People argue that no additional days are chargeable (affirmation of the People in response to defendant's motion to dismiss ¶ 4, 5 [ii] — [v], [second (i)-(vi) ] ).
In paragraph 5 of the People's response, each subsection was initially numbered consecutively, from (i)-(v), for each adjournment period.
However, the discussion of the adjournment period from April 25, 2019 to June 17, 2019 and the adjournment periods thereafter were also identically numbered as subsections (i)-(v), instead of consecutively numbered as subsections (vi)-(x). To avoid confusion, references to those adjournment periods in the People's response are referred to as "second (i)," "second (ii)," etc., as applicable.
June 17, 2019 to July 24, 2019: 0 Days Chargeable
Defendant concedes that the majority of this adjournment is excludable time but argues that four days should be chargeable to the People, because the People announced they were not ready for trial and requested an adjournment of four days to June 21, 2019 (affirmation of defendant's counsel ¶ 9 [b] ).
Contrary to defendant's contention, the People correctly point out that the entire adjournment is excludable, because codefendant Noun had moved to dismiss his own case on speedy trial grounds, and Noun's motion was not decided until July 24, 2019 (see affirmation of the People in response to defendant's motion to dismiss ¶ 5 [vii] ).
The People assert that codefendant Noun's motion was filed in court on June 17, 2019 (affirmation of the People in response to defendant's motion to dismiss ¶ 5 [vii] ). However, the court takes judicial notice that codefendant's motion to dismiss bears a court date stamp of May 22, 2019. In any event, whether codefendant filed the motion on or before June 17, 2019 is irrelevant to the computation of speedy trial time, because the "time requested by the defense to submit motions is excludable" even before the motion is served and filed (see People v. Buong Sai , 223 Ad2d 439, 440 [1st Dept 1996] ; see People v. Brown , 227 AD2d 237 [1st Dept 1996] ).
"[A]ll periods of unreadiness are chargeable to the People unless subject to an exclusion ( People v. Woods , 21 Misc 3d 1105 [A] [Crim Ct, NY County 2008] ). When defense counsel triggers one of these exceptions, the People's unreadiness is irrelevant ( People v. Cambridge , 230 AD2d 649, 650 [1st Dept 1996], citing People v. Cortes , 80 NY2d at 210 ). Pursuant to CPL 30.30 (4) (a), the period of delay resulting from pre-trial motions is excluded from the computation of time within which the people must be ready for trial (see People v. Worley , 66 NY2d 523 [1985] ). "The exclusion applies to speedy trial motions" ( People v. Shannon , 143 AD2d 572, 573 [1st Dept 1988], citing People v. Kendzia , 64 NY2d 331, 338 [1985] ).
Pursuant to CPL 30.30 (4) (d), "a reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial pursuant to this section had not run and good cause is not shown for granting severance" must also be excluded in computing the time within which the People must be ready for trial. Therefore, time that is excludable due to motion practice of codefendant Noun is excludable to defendant Ghaonbalha as well ( People v. David , 253 AD2d 642, 647 [1st Dept 2002] ["delay attributable to motion practice is excludable; a motion brought by his co-defendant is excludable to McDowell as well"], citing People v. Dery , 115 AD2d 996 [4th Dept 1985] ).
July 24, 2019 to September 11, 2019 : 0 Days chargeable
Defendant argues that the People should be charged 49 days because the People were not ready for trial and did not request a specific adjournment to a date that they would be ready (affirmation of defendant's counsel ¶ 9 [c] ). The People contend that this period should be excluded, because codefendant was not present in court and beyond the People's ability to obtain his attendance through due diligence, because he was outside of the United States, citing CPL 30.30 (4) (c) (i) (affirmation of the People in response to defendant's motion to dismiss ¶ 5 [second (iii) ] ).
Contrary to defendant's argument, the adjournment is not chargeable because of excludable time in codefendant Noun's case, which must be imputed to defendant Ghaonbalha pursuant to CPL 30.30 (4) (d).
On July 24, 2019, in codefendant Noun's case, the court had denied his motion and adjourned the codefendant's case to September 11, 2019 for hearings and trial. This adjournment is excludable because the People are allowed a reasonable amount of excludable time to prepare for trial after the court decides defense motions (see People v. Green (90 AD2d 705 [1st Dept 1982] ; see Worley , 66 NY2d 523 ). This exclusion also applies to motions to dismiss on speedy trial grounds ( People v. Eliopoulos , 290 AD2d 301 [1st Dept 2002], citing People v. Hairston, 242 AD2d 466 [1st Dept 1997], lv denied 91 NY2d 892 [1998] ).
The exclusion of the period after motion practice is rooted within the exclusion in CPL 30.30 (4) (a) for motion practice (see People v. Taylor , 16 Misc 3d 339 [Crim Ct, NY County 2007] ; see People v. Williams , 19 Misc 3d 675 [Crim Ct, NY County 2008] ; see also People v. Santiago , 147 Misc 2d 143 [Crim Ct, NY County 1990; cf. People v. Prisco , 32 Misc 3d 349 [Crim Ct, Queens County 2011] ). However, as Taylor points out, if the People are not ready for trial after hearings were granted, "the clock starts to run again. For at that point the People, by their nonreadiness, will have prevented the court from rendering its decision on the defendant's motion to suppress, thereby impeding the case from proceeding to trial" (Taylor , 16 Misc 3d at 344 ).
As discussed above, the time that is excludable due to motion practice of codefendant is excludable to defendant as well pursuant to CPL 30.30 (4) (d) ( David , 253 AD2d at 647 ). In light of the court's ruling, the court need not address the People's argument that the adjournment is excludable under CPL 30.30 (4) (c) (i).
September 11, 2019 to October 15, 2019: 0 Days Chargeable
Defendant argues that 12 days are chargeable because the People stated that they were not ready and requested an adjournment of 12 days (affirmation of defendant's counsel ¶ 9 [d] ). The People counter that the entire adjournment should be excluded because defendant was not present in court because "[he] was in Antigua and missed a flight," thus "his presence could not be obtained through due diligence" (affirmation of the People in response to defendant's motion to dismiss ¶ 5 [second (iv) ] ).
The adjournment is not chargeable to the People because the court stayed issuance of a bench warrant. Where a bench warrant is stayed, it is "a period accruing to defendant's benefit and is not chargeable to the People" ( People v. Medina , 198 AD2d 146 [1st Dept 1993], lv denied 83 NY2d 807 [1994] ; see People v. Benjamin , 292 Ad2d 191 [1st Dept 2002] ). In light of the court's ruling, the court need not address the People's argument that the adjournment is excludable under CPL 30.30 (4) (c) (i).
October 15, 2019 to November 7, 2019: possibly 23 Days Chargeable
Defendant argues that the People should be charged 23 days because the People stated that they were not ready and did not have a specific date request (affirmation of defendant's counsel ¶ 9 [e] ). The People counter that the entire adjournment should be excluded because defendant was not present in court, and while the court may have excused his appearance, "defendant was nonetheless absent" and "his presence could not be obtained through due diligence" (affirmation of the People in response to defendant's motion to dismiss ¶ 5 [second (v) ] ).
The judge presiding in Part A on September 11, 2019, issued conflicting determinations regarding defendant's requirement to appear in person. On the one hand, the court excused defendant's appearance. On the other hand, the court stayed issuance of a bench warrant. Each determination has different consequences on whether the adjournment is chargeable to the People under CPL 30.30.
When a defendant who was previously released on his/her/their own recognizance or released on bail fails to appear in person at a required court appearance, the court may issue a bench warrant (see CPL 510.50, CPL 530.70 [1] ). In those circumstances, when a bench warrant is ordered, the period "extending from the day the court issues a bench warrant pursuant to [CPL] 530.70 because of the defendant's failure to appear in court when required, to the day the defendant subsequently appears in the court pursuant to a bench warrant or voluntarily or otherwise," is excluded from the court's computation of the time within which the People must be ready for trial, provided that the defendant was not in custody on another matter ( CPL 30.30 [4] [c] [ii] ). In the alternative, the court may stay issuance of a bench warrant. As discussed above, where a bench warrant is stayed, it is "a period accruing to defendant's benefit and is not chargeable to the People" (Medina , 198 AD2d 146, supra ). In sum, whether a bench warrant is ordered or the issuance of a bench warrant is stayed, the adjournment is excludable.
However, if the defendant's appearance is excused, then the defendant's appearance is no longer required. Therefore, issuance of a bench warrant does not lie. As a corollary, a stay of the issuance of a bench warrant is not appropriate. If the court neither issues a bench warrant nor stays issuance of a bench warrant, then no exclusion under CPL 30.30 (4) (c) (ii) is triggered. In the post-readiness context, if the defendant's appearance is excused, then chargeable time under CPL 30.30 continues to run if the People do not answer ready for trial, absent any other ground triggering an exclusion (see Woods , 21 Misc 3d 1105 [A] ); Cambridge , 230 AD2d at 650 ).
Once the court has excused the defendant's appearance, it is irrelevant whether "defendant was nonetheless absent" and whether "his presence could not be obtained through due diligence," which are factors supporting excludable time only when a bench warrant is stayed.
Thus, staying issuance of a bench warrant and excusing the defendant's appearance are mutually exclusive determinations.
However, this court need not decide which determination should control or attempt to fashion an approach or rule that could reconcile the conflict (see Burnett v. Columbus McKinnon Corp. , 69 AD3d 58, 64 [4th Dept 2009] [" It is, of course, beyond our province to ‘perform useless or futile acts,’ and we are thus to refrain from "resolv[ing] disputed legal questions unless [to do so] would have an immediate practical effect on the conduct of the parties"] ). Even assuming, for the sake of argument, that this adjournment were chargeable, only 23 days would be chargeable to the People, and the total time chargeable to the People for all adjournments would be, at most, 35 days.
Finally, defendant also argues that all of the time from when the People filed their certificate of readiness on November 9, 2018 should be included, as "[a]ny time the People may seek to be excludable are illusory in nature and should not be permitted" (affirmation of defendant's counsel ¶ 10). Defendant's conclusory statements, without anything more, do not rise to the required level of showing that these postreadiness adjournments "occurred under circumstances that should be charged to the People" ( People v. Cortes , 80 NY2d 201, 215 [1992] ; see People v. Brown , 28 NY3d 392, 404 [2016] ; see People v. Daniels , 217 AD2d 448, 452 [1st Dept 1995] ).
Defendant mistakenly states that the People filed their certificate of readiness on November 10, 2018 (affirmation of defendant's counsel ¶ 10).
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In sum, the People are charged with, at most, 35 days of delay, and therefore have not exceeded the statutorily prescribed time period to announce readiness for trial under CPL 30.30. Accordingly, defendant's motion to dismiss on speedy trial grounds is denied.
CONCLUSION
Accordingly, it is hereby
ORDERED that defendant's motion to dismiss the accusatory instrument on speedy trial grounds is DENIED.