Opinion
No. 2014NY018232.
01-08-2015
The PEOPLE of the State of New York v. Matthew HAYNES, Defendant.
Barry A. Weinstein, Esq., Goldstein & Weinstein, for the defendant. Cyrus R. Vance, Jr., New York County District Attorney, by ADA Gibert Rein, for the People.
Barry A. Weinstein, Esq., Goldstein & Weinstein, for the defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by ADA Gibert Rein, for the People.
Opinion
STEVEN M. STATSINGER, J.
Defendant, charged with two counts of Assault in the Third Degree, in violation of Penal Law § 120.00(1) and (2), Attempted Assault in the Third Degree, in violation of Penal Law §§ 110/120.00(1) and Harassment in the Second Degree, in violation of Penal Law § 240.26(1), moves for an order dismissing the Information pursuant to CPL § 30.30. The Court has reviewed the entries and documents in the court file, the parties' motion papers, and the relevant statutes and case law. For the reasons discussed below, the Court finds that 20 days are chargeable to the People. Accordingly, defendant's motion to dismiss is DENIED.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, Police Officer Oshea arrived at the scene and observed, the defendant's girlfriend, Allison Harper, crying, upset, agitated, shaking and stating “HE HIT ME, HE BEAT ME UP.” Officer Oshea observed that Ms. Harper was bleeding from her mouth and her nose, had bruising and swelling above her left eye, her nose was swollen, she had a laceration to her lip, bruising on the back of her leg, the inside of her right arm and outside of her left arm. Ms. Harper told the officer that the defendant struck her in the face, with a closed fist, causing redness and swelling to her face and substantial pain.
B. Legal Proceedings
Defendant was arraigned on March 9, 2014, on an accusatory instrument charging him with two counts of Assault in the Third Degree, in violation of Penal Law § 120.00(1) and (2), Attempted Assault in the Third Degree, in violation of Penal Law §§ 110/120.00(1), and Harassment in the Second Degree, in violation of Penal Law § 240.26(1). The defendant was released on his own recognizance, the accusatory instrument was deemed an Information. The Court set a motion schedule and adjourned the case to May 1, 2014, for response and decision. Subsequent calendar appearances took place on May 27, 2014, July 22, 2014, September 24, 2014, and October 29, 2014, on which date the within motion was filed. The defendant then mailed a letter, dated November 25, 2014, to the Court, in lieu of a formal motion, challenging the decision to deem the Complaint an Information. The People responded to the motion on November 26, 2014, and the matter has been sub judice since then.
II. DISCUSSION
Defendant is charged with “at least one ... misdemeanor punishable by a sentence of imprisonment of more than three months.” CPL § 30.30(1)(b). Thus, his motion to dismiss must be granted if the People were not ready for trial within 90 chargeable days of the commencement of the action. Id. Here, there were 6 court dates from the commencement of the action through the filing of the motion to dismiss. Those events spanned 234 calendar days, and 20 of those days are chargeable to the People. The motion to dismiss is accordingly denied.
A. The Speedy Trial Calculations
1. March 9, 2014, to May 1, 2014: 0 Days Chargeable
Criminal Procedure Law § 1.20(17) provides that “a criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court.” In this case, that event occurred at defendant's arraignment on March 9, 2014. The speedy trial clock started on the next day. People v. Stiles, 70 N.Y.2d 765, 767 (1987). At the arraignment, the Court deemed the Complaint an Information, directed the defense to file motions by April 4, and adjourned the case to May 1 for response and decision.
The defense argues that the presiding judge at the arraignment incorrectly ruled that the statements in the accusatory instrument that are attributed to Ms. Harper are excited utterances, and a supporting deposition is unnecessary. The People argue that the ruling at the arraignment is the law of the case, and they are entitled to rely on that ruling.This Court, finding no legal ground on which to reconsider a different judge's ruling that the statements attributed to Ms. Harper are excited utterances, adheres to that ruling.
The Court so rules even though it acknowledges that the “law of the case” doctrine might not be applicable here, since there were no written submissions during that phase of the litigation. People v. Evans, 94 N.Y.2d 499, 727 N.E.2d 1232, 706 N.Y.S.2d 678 (2000) ; People v. Portorreal, 28 Misc.3d 388, 901 N.Y.S.2d 804 (Crim Ct Queens County 2010).
Whether an out-of-court statement is an excited utterance requires a careful balancing of a number of factors to determine whether the statement was made without an opportunity to reflect and fabricate. People v. Johnson, 1 NY3d 302, 306 (2003) ; People v. Brown, 70 N.Y.2d 513, 518 (1987) ; People v. Diaz, 21 AD3d 58 (1st Dept 2005). Those factors include the timing between the statement and the stimulus that prompted it, the nature of that stimulus and the declarant's physical and emotional state at the time of the statement. Id. This type of balancing is, in other words, a classic exercise of a court's discretion. Indeed, it is typically reviewed as such. See, e.g., People v. Cantave, 21 NY3d 374, 381, 993 N.E.2d 1257, 1261, 971 N.Y.S.2d 237, 240 (2013) (reviewing for abuse of discretion trial court's exclusion of 911 call because it was not an excited utterance); People v. Gabriel, 105 AD3d 650, 963 N.Y.S.2d 585 (1st Dept 2013) (decision to admit 911 call as excited utterance was a proper exercise of trial court's discretion).
Accordingly, defendant would only be entitled to reconsideration of the ruling here, if at all, if he could identify an abuse of discretion. A court abuses its discretion when it “commits a serious error of judgment, such as the failure to consider an essential factor,” United States v. Lowe, 632 F.3d 996, 997 (7th Cir.2011), or reaches “erroneous conclusions of law or premises its holding on a clearly erroneous assessment of the evidence,” Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir.2010) (citation and internal quotation marks omitted), but not when it “chooses one of two plausible theories.” Peckett v. Sheridan Health Care Ctr., 610 F.3d 434, 447 (7th Cir.2010).
The Court did not abuse its discretion in reaching its initial conclusion that the statements attributed to Ms. Harper in the accusatory instrument were excited utterances. There was no mistake of law or fact, nor did the Court fail to consider any of the necessary factors that go into the excited utterance calculus. The Court examined the factual record and, faced with two possibilities—the statements attributed to the alleged victim either were or were not excited utterances—it chose the former. There is no basis for unsettling that determination now.
Accordingly, the Court adheres to the arraignment court's ruling that the statements in the accusatory instrument attributed to Ms. Harper are excited utterances.
For this period, 0 days are chargeable to the People. CPL § 30.30(4)(a) ( “reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions” is excludable).
2. May 1, 2014, to May 27, 2014: 0 Days Chargeable
On May 1, 2014, defense counsel was not present. Motions were deemed waived, and the case was adjourned to May 27 for defense counsel to appear. The period is excludable. CPL § 30.30(4)(f) (“period during which the defendant is without counsel through no fault of the court” is excludable).
3. May 27, 2014, to July 22, 2014: 6 Days Chargeable
On May 27, 2014, the People answered “not ready” for trial. The Court adjourned the case to July 22. On June 2, off-calendar, the People filed with the Court and served on defense counsel by mail a Certificate of Readiness (“COR”). Accordingly, 6 days are chargeable to the People. The People concede these 6 days.
4. July 22, 2014, to September 24, 2014: 0 Days Chargeable
On July 22, 2014, the People answered “ready” for trial, but the defense was not ready. The case was adjourned to September 24. For this period, 0 days are chargeable to the People. CPL § 30.30(4)(b) (“period of delay resulting from a continuance granted by the court at the request of ... the defendant or his counsel” is excludable). The period is also excludable because the People answered ready, on the record, in the presence of defense counsel. See People v. Cajigas, 224 A.D.2d 370, 372 (1st Dept.1996), appeal denied, 88 N.Y.2d 845 (1996) ; People v. Armstrong, 163 Misc.2d 588, 590 (App. Term 1st Dept.1994), appeal denied, 84 N.Y.2d 1028 (1995).
5. September 24, 2014, to October 29, 2014: 14 Days Chargeable
On September 24, the People answered “not ready” for trial, and requested an adjournment to October 8. The Court adjourned the case to October 29. Accordingly, 14 days-the adjournment the People requested-are chargeable for this period. The People concede these 14 days.
6. October 29, 2014, to January 8, 2015: 0 Days Chargeable
The defense filed the instant motion on October 29, 2014. The Court directed the People to file a response by November 26, and adjourned the case to January 8, 2015, for decision.
For this period, 0 days are chargeable to the People. CPL § 30.30(4)(a) ( “reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions” is excludable).
B. Conclusion
As detailed above, 20 days (6 + 14 @ 20) are chargeable to the People. Defendant's motion to dismiss pursuant to CPL § 30.30 is accordingly denied.
IV. CONCLUSION
Since 20 days of speedy trial time are chargeable to the People, defendant's motion to dismiss is denied.
This constitutes the Decision and Order of the Court.