Opinion
No. 2022-494 S CR
05-16-2024
The People of the State of New York, Respondent, v. Mirna Hernandez, Appellant.
Suffolk County Legal Aid Society (Genevieve M. Cahill of counsel), for appellant. Suffolk County District Attorney (Rosalind C. Gray and Marion Tang of counsel), for respondent.
Suffolk County Legal Aid Society (Genevieve M. Cahill of counsel), for appellant.
Suffolk County District Attorney (Rosalind C. Gray and Marion Tang of counsel), for respondent.
PRESENT:: JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, JAMES P. McCORMACK, JJ
Appeal from a judgment of the District Court of Suffolk County, First District (Eric Sachs, J.), rendered June 7, 2022. The judgment convicted defendant, upon her plea of guilty, of common-law driving while intoxicated, aggravated driving while intoxicated per se, aggravated unlicensed operation of a motor vehicle in the third degree, unlicensed operation of a motor vehicle, and operating an unregistered motor vehicle, and imposed sentence. The appeal brings up for review an order of that court dated November 10, 2021 denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.
ORDERED that the judgment of conviction is reversed, on the law, the order denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is vacated, defendant's motion is granted, and the fine, if paid, is remitted.
Insofar as is relevant to this appeal, on January 2, 2020, defendant was arraigned and charged with common-law driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), aggravated driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2-a] [a]), aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1]), unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]), and operating an unregistered motor vehicle (Vehicle and Traffic Law § 401 [1] [a]). Thereafter, the case was adjourned several times. On March 20, 2020, Executive Order 202.8 (9 NYCRR 8.202.8) tolled the application of CPL 30.30 from the date of the order. On July 14, 2020, the People filed an off-calendar certificate of compliance (COC) and a statement of readiness (SOR) which did not include a CPL 30.30 (5-a) certification of the facial sufficiency of the accusatory instrument. Executive Order 202.60 (9 NYCRR 8.202.60) subsequently lifted the CPL 30.30 suspension once petit criminal juries reconvened in the District Court of Suffolk County, which apparently occurred on either September 8 or 9, 2020.
This Executive Order was extended several times (see Executive Orders 202.14, 202.28 and 202.38).
The case then appeared on the September 23, 2020 calendar, after which it was repeatedly adjourned. On the March 9, 2021 adjourned date, the prosecutor stated that "the People certified on July 14 of 2020. People stand on the sufficiency of the accusatory instrument. And People are ready." In July 2021, a motion schedule was set and defendant moved to dismiss the accusatory instrument on the ground that her statutory right to a speedy trial had been violated. Defense counsel argued that the People's July 2020 SOR was invalid because it did not include a CPL 30.30 (5-a) certification. The People opposed the motion and filed an SOR, dated October 19, 2021, which included a CPL 30.30 (5-a) certification.
By order dated November 10, 2021, the District Court denied defendant's statutory speedy trial motion finding that only 78 days of delay were chargeable to the People, as the People's "supplemental certifications [the March 2021 oral statement and the October 2021 SOR] cured the defect of the missing boilerplate language, therefore the Certificate of Compliance filed on July 14, 2020 was valid and the speedy trial clock was stopped." Thereafter, defendant pleaded guilty to each charge and sentence was imposed.
On appeal, defendant contends that the District Court improperly denied her statutory speedy trial motion because the CPL 30.30 (5-a) certifications the People provided in March and October 2021 did not retroactively cure the invalid SOR that the People submitted in July 2020 and, thus, more than 90 days of delay were chargeable to the People.
Pursuant to CPL 30.30 (1) (b), the People had 90 days from the filing of the accusatory instrument on January 2, 2020 to announce their readiness for trial, as the most serious offense charged was a class A misdemeanor (see People v Lomax, 50 N.Y.2d 351, 356 [1980]). Moreover, CPL 30.30 (5-a) provides that "a statement of readiness shall not be valid unless the prosecuting attorney certifies" that the accusatory instrument is facially sufficient. Although the People are permitted to file a CPL 30.30 (5-a) certification after they have filed an SOR, People v Ward (79 Misc.3d 129 [A], 2023 NY Slip Op 50688[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]) appears to foreclose that argument with its holding that such a certification does not retroactively validate a previously filed SOR. It is uncontroverted that the People's July 2020 SOR here did not include a CPL 30.30 (5-a) certification and that the People did not so certify until 2021, well past the 90 days in which they had to announce their readiness for trial pursuant to CPL 30.30 (1) (b). Consequently, the 78 days from January 2, 2020 to March 20, 2020 and the 14 days from September 9, 2020 to September 23, 2020 are chargeable to the People, and constitute more than 90 days of delay.
Accordingly, the judgment of conviction is reversed, the order denying defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds is vacated, and defendant's motion is granted.
GARGUILO, P.J., DRISCOLL and McCORMACK, JJ., concur.