Opinion
2014-1362 Q CR
06-07-2017
THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. Elijah Gough, Respondent.
PRESENT: :
Appeal from an order of the Criminal Court of the City of New York, Queens County (Gia L. Morris, J.; op 44 Misc 3d 431), entered May 30, 2014. The order, upon reargument, adhered to a prior determination in an order of the same court dated December 4, 2013 granting defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.
ORDERED that the order is affirmed.
On April 4, 2013, defendant was arraigned on charges of criminal possession of marijuana in the fifth degree (Penal Law § 221.10 [1]) and obstructing the driver's view in a motor vehicle (Vehicle and Traffic Law § 375 [30]). At that court appearance, the People announced ready for trial and the case was adjourned to May 22, 2013 for open-file discovery. On May 22, 2013, open-file discovery was exchanged and the People maintained their readiness for trial. The court adjourned the case to July 30, 2013 for hearings. At the next court appearance, on July 30, 2013, the People were not ready for the hearings and, after volunteering to file a certificate of readiness, they requested a two-day adjournment to August 1, 2013. The court adjourned the case to October 2, 2013, a date that was convenient for both parties, and stated that it was going to continue to charge time to the People until they filed a certificate of readiness. The People never filed a certificate of readiness and, on October 2, 2013, defense counsel informed the court of her intention to make a speedy trial motion.
By notice of motion, defendant moved to dismiss the accusatory instrument based upon statutory speedy trial grounds, contending that the People should be charged 64 days for the period between July 30, 2013 and October 2, 2013. In opposition to defendant's motion, the People contended that no more than two days were chargeable to them for that period of time since only the days requested by them for an adjournment are chargeable and, consequently, the remaining period of delay was excludable. In an order entered December 4, 2013, the Criminal Court granted the motion and dismissed the accusatory instrument. The People moved for leave to reargue their opposition to the motion to dismiss, contending, for the first time, that they were not ready on July 30, 2013 because the arresting officer "was on his regular day off," which, for the purposes of speedy trial calculation, qualified as an exceptional circumstance under CPL 30.30 (4) (g) (i), and that, by ordering them to file a certificate of readiness when they had requested a date certain for an adjournment, the court had improperly invalidated their prior statement of readiness. Defendant did not submit opposition papers to the reargument motion. In an order entered May 30, 2014 (op 44 Misc 3d 431), the Criminal Court granted the People leave to reargue, "in order to clarify the issues presented" in its previous decision, but adhered to its original determination, noting that, by directing the People on July 30th to file a certificate of readiness, it had found their request for a two-day adjournment to be illusory.
In a case, such as this one, where the highest class of crime that the defendant is charged with is a class B misdemeanor, CPL 30.30 (1) (c) requires the People to be ready for trial within 60 days of the commencement of the criminal action. Here, the record demonstrates that, on July 30, 2013, after announcing that they were not ready for the hearings but before requesting a two-day adjournment, the People volunteered to file a certificate of readiness. Thus, the People's contention that the court should not have required them to file a certificate of readiness subsequent to their request for an adjournment to a date certain is undermined by their having offered to do so, and they cannot now be heard to complain that the court was not authorized to ask for one in this situation. Therefore, since the People failed to comply with the court's directive to file a certificate of readiness, they were chargeable with the full 64 days between July 30, 2013 and October 2, 2013, when they next appeared in court.
Accordingly, the order is affirmed.
Pesce, P.J., Solomon and Elliot, JJ., concur. Decision Date: June 07, 2017