Opinion
No. 2012–761 OR CR.
09-18-2015
The PEOPLE of the State of New York, Respondent, v. Amanda L. HENDERSON, Appellant.
Opinion
Appeal from three judgments of the Justice Court of the Town of Walkill, Orange County (Patrick S. Owen, J.), rendered March 6, 2012. The judgments convicted defendant, after a nonjury trial, of common-law driving while intoxicated, aggravated driving while intoxicated per se, and driving without wearing a seat belt, respectively. The appeal from the judgments of conviction brings up for review so much of an order of the same court dated November 30, 2011 as denied the branches of defendant's motion seeking to dismiss the three accusatory instruments on constitutional and statutory speedy trial grounds.
ORDERED that so much of the order dated November 30, 2011 as denied the branches of defendant's motion seeking to dismiss the three accusatory instruments on constitutional speedy trial grounds, and to dismiss the accusatory instruments charging defendant with common-law driving while intoxicated and aggravated driving while intoxicated per se, respectively, on statutory speedy trial grounds, is vacated, and the matter is remitted to the Justice Court for a new determination of these branches of defendant's motion in accordance with the decision herein. The appeal is held in abeyance in the interim. The report shall be filed with all convenient speed.
On March 7, 2009, defendant was arrested and charged, in three simplified traffic informations, with common-law driving while intoxicated (Vehicle and Traffic Law § 11923 ), aggravated driving while intoxicated per se (Vehicle and Traffic Law § 11922–a[a] ), and driving without wearing a seat belt (Vehicle and Traffic Law § 1229–c 3 ), respectively. She was arraigned on March 19, 2009. In a letter dated March 20, 2009 enclosing various discovery materials, the People declared their readiness for trial. On or about November 23, 2011, defendant moved for, among other things, dismissal of the simplified traffic informations, pursuant to CPL 30.20 and 30.30, on constitutional and statutory speedy trial grounds. The People filed papers, dated November 29, 2011, in opposition to the motion. Defendant did not submit a reply to the People's opposition to the motion. One day later, by decision and order dated November 30, 2011, the Justice Court, among other things, denied those branches of the motion seeking to dismiss the simplified traffic informations based on the alleged violation of defendant's constitutional and statutory speedy trial rights. The court determined that “[d]efendant's claims with respect to the indeterminate period of time [she] claims are chargeable to the People [are] without merit,” as the People had announced that they were ready for trial “well within the statutory time frame.” Thus, defendant's statutory speedy trial rights were not violated. The court then weighed the five factors applicable to a claim of a violation of the constitutional right to a speedy trial (see People v. Taranovich, 37 N.Y.2d 442, 445 1975 ), and determined that “there has been no period of pretrial incarceration, there is no claim of any impairment of defendant's defense,” and that “the reasons for the delay are defendant's requests for adjournment, court congestion and changes in the judiciary of the Justice Court.” Defendant was then tried on November 30, 2011, after which she was convicted of all three charges.
Due to the failure of the Justice Court's computer system, none of the proceedings regarding this case were electronically recorded or transcribed. Thus, defendant took this appeal by filing an affidavit of errors (see CPL 460.103[a] ), in which defendant claimed that she “was denied the right to a speedy trial pursuant to CPL 30.20 and CPL 30.30.” In its return (see CPL 460.103[d] ), the Justice Court stated that “[t]he defendant was afforded a speedy trial under the circumstances.” Defendant met her initial burden regarding her statutory speedy trial claim (see People v. Beasley, 16 NY3d 289, 292 2011 ). In opposition, the People identified the statutory exclusions on which they intended to rely. However, when the Justice Court decided the motion to dismiss one day after the date of the People's opposition, defendant was not afforded an opportunity to preserve for appellate review challenges to the People's reliance on such exclusions by identifying any legal or factual impediments to the use of such exclusions (see People v.. Beasley, 16 NY3d at 292; People v. Goode, 87 N.Y.2d 1045, 1047 1996; People v. Brown, 122 AD3d 461, 462 2014; People v. Gordon, 110 AD3d 736, 736–737 2013; People v. Mackenzie, 231 A.D.2d 740, 741 1996; People v. Lovell, 14 Misc.3d 145[A], 2007 N.Y. Slip Op 50413[U] [App Term, 9th & 10th Jud Dists 2007]; see also People v. Johnson, 288 A.D.2d 501, 503 2001; cf. People v. Henderson, 120 AD3d 1258, 1258–1259 2014; People v. Jackson, 259 A.D.2d 376 1999 ).
We note that the People's opposition papers indicated that “[a]ny statement provided herein is made upon information and belief, the sources of which are the records within the District Attorney's Office and documentation from the arresting police agency .” It is the People's burden, with respect to alleged postreadiness delay, “of ensuring that the record explains the cause of adjournments sufficiently for the court to determine which party should properly be charged with any delay” (People v. Stirrup, 91 N.Y.2d 434, 440 1998 ). The People's opposition papers “failed to conclusively demonstrate with unquestionable documentary proof' that they satisfied” the requirement to be ready within 90 days (People v. Allard, 113 AD3d 624, 626 2014, quoting CPL 210.455 ).
With respect to defendant's constitutional speedy trial claim, the Court of Appeals has stated the following:
“A criminal defendant's right to a speedy trial is guaranteed both by the Sixth Amendment to the United States Constitution (U.S. Const 6th, 14th Amends) and by statute (CPL 30.20; Civil Rights Law § 12). Violation of this right results in dismissal of an [accusatory instrument] (see Strunk v. United States, 412 U.S. 434, 439–440 1973; People v. Taranovich, 37 N.Y.2d 442, 444 1975 ).
The term speedy trial' must be evaluated in the context of a sensitive balancing of several factors, with no one factor being dispositive of a violation, and with no formalistic precepts by which a deprivation of the right can be assessed (see Doggett v. United States, 505 U.S. 647, 651 1992; Taranovich, 37 N.Y.2d at 444–445). The five factors to be considered are: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of defendant's defense (see Taranovich, 37 N.Y.2d at 445). The balancing of these factors must be performed carefully in light of the particular facts in each case (see People v. Vernace, 96 N.Y.2d 886, 887 2001 ).
The first factor, the extent of the delay, is of critical importance because all other factors being equal, the greater the delay the more probable it is that the accused will be harmed thereby' (Taranovich, 37 N.Y.2d at 445). There is no specific temporal period by which a delay may be evaluated or considered presumptively prejudicial' (see Doggett, 505 U.S. at 652). Where the delay is lengthy, an examination of the other factors is triggered, and the length of delay becomes one factor in that inquiry (see id.)” (People v. Romeo, 12 NY3d 51, 55–56 2009 ).
Under the circumstances, the appeal must be held in abeyance to afford defendant an opportunity to reply to the People's opposition to her constitutional and statutory speedy trial claims, followed by a new determination by the Justice Court.
We note that the constitutional speedy trial claim applies to all three charges, while the statutory speedy trial claim applies only to the charges of common-law driving while intoxicated and aggravated driving while intoxicated per se, class A misdemeanors, for which the People were required to be ready for trial within 90 days of the filing of the accusatory instrument (see CPL 30.301[b]; 5[c] ). The statutory speedy trial claim is not applicable to the traffic infraction of driving without wearing a seat belt (see People v. Didio, 14 Misc.3d 128[A], 2006 N.Y. Slip Op 52496[U] [App Term, 9th & 10th Jud Dists 2006] ).
Accordingly, so much of the order dated November 30, 2011 as denied the branches of defendant's motion seeking to dismiss the three accusatory instruments on constitutional speedy trial grounds, and to dismiss the accusatory instruments charging defendant with common-law driving while intoxicated and aggravated driving while intoxicated per se, respectively, on statutory speedy grounds, is vacated, and the matter is remitted to the Justice Court for a new determination of these branches of the motion in accordance with the decision herein. The appeal is held in abeyance pending receipt of the Justice Court's report, which shall be filed with all convenient speed.
TOLBERT, J.P., GARGUILO and CONNOLLY, JJ., concur.