Opinion
Case No. 20110032
05-19-2022
PEOPLE of the State of New York, Plaintiff, v. Helena HENRIQUEZ-ULINTZ, Defendant.
For the People: Rockland County Assistant District Attorney Renanda N. Lewis For the Defense: David D. Narain, Esq.
For the People: Rockland County Assistant District Attorney Renanda N. Lewis
For the Defense: David D. Narain, Esq.
Marc R. Ruby, J.
I. Background and Procedural Posture
This action commenced on 24 November 2020, with the filing of a felony complaint, charging the Defendant with 3rd degree burglary, in contravention of NY PENAL LAW § 140.20, along with two counts of aggravated 2nd degree harassment, in contravention of NY PENAL LAW § 240.30(1)(a), under misdemeanor information.
The Speedy Trial Clock, crafted under NY CRIM PROC. LAW § 30.30(1)(a), commenced ticking, the following day. People v. Stiles , 70 NY2d 765 (1987). Since the Defendant was charged with felonious conduct, the People would have six (6) months for, inter alia , certifying service of myriad discovery materials upon the Defendant, and announcing readiness for trial. ( NY CRIM PROC. LAW § 245.50(3) ). This period is not necessarily comprised of 180 days; the timekeeper counts calendar months. People v. Cortes , 80 NY2d 201, 207 n.3 (1992). The Speedy Trial Clock does not necessarily tick as incessantly as the wall clock. A stop function deactivates the Speedy Trial Clock, when certain excludable time periods arise. ( NY CRIM PROC. LAW § 30.30(4) ). These exclusions are tabulated and tailored to the case, by the parties and/or the court.
Notwithstanding the foregoing, eight (8) months before this case commenced, Executive Order 202.8, had suspended many provisions of the Criminal Procedure Law in response to the covid-19 pandemic. ( 9 NYCRR 8.202.8 ). Right before this case began, the suspension affecting § 30.30 was rescinded. ( 9 NYCRR 8.202.67 ). However, on 30 December 2020, § 30.30 was suspended by Executive Order "to the extent necessary to toll any periods" running on felony cases, until the defendant was arraigned on a grand jury's true bill. ( 9 NYCRR 8.202.87 ).This suspension was gubernatorially rescinded, effective May 23, 2021. (9 NYCRR 8.202.106).
On 22 September 2021, the felony complaint was reduced to 2nd degree criminal trespass misdemeanor, in contravention of N.Y PENAL LAW § 140.15. The People served an initial COC, the same day. The Defendant filed a written challenge to the COC, on 2 November 2021. The People opposed, and filed a Supplemental COC, on 24 November 2021. This Court directed the filing of more formal motions, on 1 December 2021. The Defendant complied, with a Motion to Invalidate both COCs, on 13 December 2021. The People filed opposition, on 5 January 2022. On 24 January 2022, the Defendant requested supplemental consideration of People v. Polanco-Chavarria , 74 Misc 3d 1210(A) (Rockland Co. Ct. 2021).
This Court granted the request on 26 January 2022, and gave the People leave for supplementing their opposition. Instead of a supplement, the People filed another COC, on 11 February 2022. During a 16 February 2022 appearance, this Court invoked discovery-compliance facilitation procedures, under NY CRIM PROC. LAW § 245.35, and ordered reciprocal and full compliance with NY CRIM PROC. LAW § 245 et seq. , and further briefing, on:
1. A speedy trial timeline, computing how many days (includable and excludable) for providing discovery have been charged to the People, following the Defendant's arraignment;
2. Whether by filing a Supplemental COC the People had conceded the previous COC's were deficient; and ,
3. What, if any "Speedy trial and time limitations" effects, prescribed under § 30.30 et seq. , would have on this case, if Defendant's Motion to Invalidate all, or any of the People's COC's were granted.
The Defendant filed a corresponding Memorandum of Law , on 3 April 2022, and the People's Memorandum of Law followed, on 5 April 2022.
II. Positions of the Parties
Where harmony exists, dissonance retreats. Here, the felony complaint is stamped "filed" on 24 November 2020. This is not in material dispute. ( See People's 5 April 2022 Memorandum of Law , p.4, § 7, and See Defendant's 3 April 2022 Memorandum of Law , p.2, § 6). The tolling of § 30.30, originally applied under Executive Order 202.8, was rescinded on October 4, 2020. ( 9 NYCRR 8.202.67 ). As such, § 30.30(1)(a) ’s Speedy Trial Clock started, on 25 November 2020. Stiles , supra. This is also outside material dispute. (Id. ). However, the People and the Defendant part company over whether Executive Order 202.87 tolled the Clock, until its 23 May 2021 expiry date.
By the People's calculation, time began "again" on 24 May 2021, and permanently ground to a halt, upon filing the COC, on 22 September 2021. ( See People's 5 April 2022 Memorandum of Law , p.5, § 9 & § 11). Meanwhile, the Defendant's scorecard indicates 116 days of includable time accrued on the Clock, between filing, and 23 May 2021 . (See Defendant's 3 April 2022 Memorandum of Law , p.2, § 6). Subsequently, the Defendant's accounting has the Clock ticking without interruption, until 20 October 2021. ( See Defendant's 3 April 2022 Memorandum of Law , pp. 8-9). And the Defendant tallies a final 21 days, elapsed between 3 November 2021, and 24 November 2021. (See Defendant's 3 April 2022 Memorandum of Law , p. 9, § 31). In sum, the Defendant counts a total of 288 days on the Clock. ( See Defendant's 3 April 2022 Memorandum of Law , p. 9, § 31). The People count 121. ( See People's 5 April 2022 Memorandum of Law , p.5; § 11).
Although this period is comprised of 180 calendar days, the Defendant does not contend the remaining 64 days are chargeable to the People.
III. Legal Analysis
This Court does not adopt either ledger wholesale. Instead, the Court counts:
| 25 November 2020 through 30 December 2020 | 35 days |
| 31 December through 23 May 2021 | 0 days |
| 24 May 2021 through 22 September 2021 | 121 days |
| 23 September 2021 through today | TBD |
| SUBTOTAL : 156 days |
|---|
The Defendant places heavy reliance upon People v. Williams , 152 N.Y.S.3d 791 (Mt. Vernon City Ct. 2021). There, the defendant's motion to dismiss a superseding information was granted, after the People were charged with includable Speedy Trial time, accrued between 23 November 2020, and 8 July 2021. As the Defendant contends, the Williams Court did hold that Executive Order 202.87 had not stopped the Clock. However, and critically so, this finding was not made in a vacuum. Rather, in Williams , the People twice, made on-record assertions, stating the case would be directly presented to a grand jury, during 202.87's pendency. This distinction must not be ignored. For if the People were ready, willing, and able to present the case to a grand jury, it would necessarily follow that 202.87 afforded the People no quarter from the ticking clock. Here, there is no contention that the People were gearing up to present the instant case to a grand jury during 202.87's pendency.
The Defendant also cites People v. Taback , 159 N.Y.S.3d 618 (Orange Co. Ct. 2021). This Court need not scrutinize the Taback ’s interpretation of 202.87, because although Taback was calendared somewhat contemporaneously with this case, Taback was decided under inapposite procedural posture. There, the People's bid for refuge under 202.87's tolling provision was bellied by having already secured an indictment—thereby dispensing with the situation 202.87 sought to remedy. In other words, the People may not indict a defendant, and then contend the Clock had stopped because grand juries were not regularly impaneled. A close reading of Taback shows the alleged criminal incident transpired in October 2020. However, unlike the instant case, the defendant was charged under a June 2, 2021 grand jury's indictment, and nonetheless after 202.87's tolling effect was rescinded. Here, and incongruously, the People never secured an indictment against the Defendant—thus preserving the spirit of 202.87's tolling effect.
Aside from the distinctions between this case, Williams , and Taback , this Court is unpersuaded by the Defendant's characterization of New York County Supreme Court's People v. Aquino , 2022 WL 829720 (Sup. Ct. NY County 2022), as an "outlier." The Defendant urges a mechanical construction of 202.87, where Speedy Trial Clocks in all cases, would commence ticking, if any one case was put to a grand jury. This is inconsistent with the litany of orders 202.87 descended from. For instance, antecedent Executive Order 202.60 continued suspension of Speedy Trial time limitations "in a jurisdiction", "until such time as petit criminal juries [ ] reconvene[ ]" "in that jurisdiction." ( 9 NYCRR 8.202.60 ). Accordingly, 202.60 is a plain directive for all Clocks to tick, once a petit jury venire is assembled for a single case. This is not what 202.87 says. In pertinent part, 202.87 states:
Section 30.30 and Section 190.80 of the criminal procedure law are suspended to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled. ( 9 NYCRR 8.202.87 ).
For starters, "the extent necessary to" phrase does not materially add to the directive. After all, "the extent necessary" simply limits the effect of § 30.30 ’s suspension, to toll time periods in felony cases, until the defendant is indicted. It is not as though § 30.30 was entirely suspended. Rather, it was only suspended—to an extent. In the context of § 30.30 ’s eight subdivisions, this suspension only affected a scant sliver of the statute's sweep. This Court finds "the extent necessary" is mere surplusage; for when it is "read out", 202.87's directive remains unchanged.
Yet, even if "the extent necessary" is not surplusage, and carries independent meaning, who would be the arbiter of necessity? Had the Governor intended for a court to be the arbiter, 202.87 would have said as much. To be sure, Executive Order 202.1 stated a "court, in its discretion, may dispense with the personal appearance of the defendant, except an appearance at a hearing or trial, and conduct an electronic appearance in connection with a criminal action pending in any county in New York State". Yet, 202.87 did not vest courts with discretion. And even if 202.87 had, the discretion would almost surely have been given to a superior court; not a magistrate's court.
As the Defendant requests, this Court can take judicial notice of some cases, calendared contemporaneously with this one, being presented to a grand jury, during the first half of 2021. However, the District Attorney has "substantial control over [ ] Grand Jury proceedings." People v. DiFalco , 44 NY2d 482, 487 (1978) ; NY CRIM. PROC. LAW §§ 190.25 & 190.55. Therefore, this Court does not feel competent ruling on how the District Attorney should have allocated resources, or prioritized cases, under the constraints of a crippling pandemic. Such an ex post facto inquiry into the constellation of covid-related intricacies would entail examining the degree of contagion surrounding virus variants, geographical infection rates, hospitalization rates, case counts, safety protocols and ventilation in facilities where grand juries convene, staffing issues in the District Attorney's office, severity of charges among numerous docketed cases, and the availability of grand jurors. The inquest into this satellite issue, would require a trial, within a trial.
Unless litigation invokes precedent, and demands analogization or distinguishment between cases, unrelated parties probably are not interested in the time displayed on each other's Clocks. Ordinarily. Nor is the Executive hand ordinarily atop the Clock; its time is ordinarily kept by the Judiciary. But a pandemic's challenges are mercifully, and decidedly, outside the ordinary. And so, this Court finds the People reasonably relied upon the plain language of 202.87, in determining the Clock was paused between 30 December 2020, and 23 May 2021.
However, this accounting isn't necessarily final. Should the 22 September COC be held insufficient, the People are liable for additional time, and potentially face dismissal. When the 3rd degree felony burglary charge was reduced to a 2nd degree criminal trespass Class A misdemeanor, on 22 September 2021, 156 days had elapsed on the Clock. In instances where a felony is reduced to a Class A misdemeanor, Speedy Trial time is modified, so the People are limited to the shorter of: 1) 90 days on the superseding misdemeanor; or , 2) the balance remaining of the 6 months after the felony filing. People v. Sommersell , 638 N.Y.S.2d 272, 273-74 (App. Term 1995). Accordingly, under Sommersell , as of 22 September 2021, the People had 25 Speedy Trial days (181 days from the felony filing, minus 156 days registered on the Clock) remaining.
Of critical import to this Court's timekeeping analysis, the People contend there was an adjournment on 22 September 2021 "for the filing of motions." ( See People's 5 April 2022 Memorandum of Law , p.5; § 11). By the Defendant's characterization, "the matter was adjourned for both the Court and defense counsel to review the certificate of compliance" without "consent of the [D]defendant." This is the basis for the People's assertion that the Clock stopped, and the basis for the Defendant's assertion that the Clock continued running. It is also the difference between whether the People complied with, or ran afoul of § 30.30.
In all events, neither the People, nor the Defendant claim responsibility, or accept liability for the adjournment. The People are steadfast in contenting their 22 September 2021 readiness statement tolled the Clock. Meanwhile, the Defendant contends the 22 September 2021 adjournment was for both the Court and the Defendant to review the COC. On these facts, and in objective review, it as appears as though the adjournment was made for this Court's benefit.
This Court's composition changed in January 2022, during the case's pendency.
"With respect to periods of delay that occur following the People's statement of readiness, only those delays which are attributable to their inaction and directly implicate their ability to proceed with trial are charged against them." People v Nielsen , 306 AD2d 500, 501 (2nd Dep't 2003) (citations omitted). Any post-readiness period of an adjournment in excess of that actually requested by the People is excluded. People v Boumoussa, 104 AD3d 863, 863 (2nd Dep't 2013). And in all events, "postreadiness delay attributable to the court is not charged to the People ." People v Brown, 28 NY3d 392, 404 (2016) (emphasis added).
IV. Conclusion
Since the People and the Defendant agree the Clock was tolled on 21 October 2021, this Court need not presently find otherwise. The Defendant contends the Clock restarted on 3 November 2021. At this juncture, this Court disagrees, because the Defendant filed a written challenge to the People's COC, on 2 November 2021, and finds no change in status quo, between the Defendant's initial challenge, and 24 November 2021—when the Defendant indicates the Clock stopped running. Indeed, the "time required for [a] defendant's pretrial motions and [ ] requested adjournments should be excluded", because such "delays have been caused by the defendant for [the defendant's] own benefit, and with the court's permission, under circumstances in which both the defendant and the court have determined that the adjournment is desirable." People v Worley , 66 NY2d 523, 527 (1985). And since there is harmony between the parties inasmuch as the Clock has not ticked since 24 November 2021, this Court does not upset what is constructively stipulated.
Of course, this decision is only a forensic accounting of Speedy Trial Time accrued before 22 September 2021. Further contentions surrounding the content and sufficiency of the People's COCs will be decided separately, under the premise that, as of 22 September 2021, there are but twenty-five (25) days on the Speedy Trial Clock.
IT IS SO ORDERED .