Opinion
File No. 21080055
12-22-2021
The PEOPLE of the State of New York, Plaintiff, v. John M. JEFFERS, Defendant.
FOR THE PEOPLE: HON. P. DAVID SOARES, Albany County District Attorney, Noah Engelhart, Esq., Assistant District Attorney, Albany County Judicial Center, 6 Lodge Street, Albany, New York 12207 FOR THE DEFENDANT: STEPHEN W. HERRICK ESQ., Albany County Public Defender, Jonathan Moberg, Esq., Assistant Public Defender, 112 State Street, Second Floor, Albany, New York 12207-2012
FOR THE PEOPLE: HON. P. DAVID SOARES, Albany County District Attorney, Noah Engelhart, Esq., Assistant District Attorney, Albany County Judicial Center, 6 Lodge Street, Albany, New York 12207
FOR THE DEFENDANT: STEPHEN W. HERRICK ESQ., Albany County Public Defender, Jonathan Moberg, Esq., Assistant Public Defender, 112 State Street, Second Floor, Albany, New York 12207-2012
David J. Wukitsch, J.
Before this court is defendant John M. Jeffers's speedy trial motion seeking dismissal of an information dated August 17, 2021 charging him with the non-criminal violation of Harassment-2nd Degree-Physical Contact in violation of Penal Law § 240.26 (1). By way of background on August 17, 2021, Trooper Meghan K. Lohman requested in writing that a criminal summons be issued to defendant Jeffers. The court was temporarily closed from August 16, 2021 until August 20, 2021. On or about August 23, 2021, the court clerk filed the non-criminal information dated August 17, 2021. On August 25, 2021, this court mailed a criminal summons to defendant Jeffers at his address—4 Swift Road Voorheesville, New York, ordering him to appear before this court for arraignment on September 9, 2021 at 5 pm.
On September 9, 2021, defendant appeared in court and the Public Defender's Office was assigned to represent him. He was arraigned and entered a plea of not guilty on that date. The People announced their readiness for trial at a subsequent court session on October 5, 2021.
Defendant now moves to dismiss the accusatory instrument, with prejudice, on the ground that his statutory speedy trial rights under CPL § 30.30 have been violated. Because the information in this case charges a non-criminal violation, the People had thirty (30) days from commencement of the action to announce their readiness for trial. See, CPL § 30.30 (1) (d). Defendant contends that the action was commenced on or shortly after August 17, 2021, when the accusatory instrument was filed with this court. See, CPL § 30.30 (7) (b). The People announced readiness for trial on October 5, 2021, more than thirty days after the commencement of the action. Thus, according to defendant, the People failed to comply with the statutory speedy trial requirement, and the charge against him must be dismissed.
The People oppose the motion to dismiss. They contend that the criminal summons in this case was ostensibly an appearance ticket because it conformed with the requirements of and functioned identically to an appearance ticket under CPL § 150.10 (1). If the criminal summons is tantamount to an appearance ticket, as urged by the People, then the criminal action does not commence until the defendant first appears in court. See CPL § 30.30 (7)(b). Therefore, in this case, according to the People, the action commenced on September 9, 2021 (defendant's first appearance in court) and they announced readiness on October 5, 2021, within the thirty (30) day speedy trial period.
The issue raised on this motion is when does the action "commence" for speedy trial purposes. The People and defendant agree that since a non-criminal violation is charged, the People were required to announce readiness for trial within thirty days of the commencement of the action. CPL§ 30.30 (1)(d). The People and defendant dispute the date of commencement—the People contend that the criminal summons functioned like an appearance ticket and therefore the action commenced on September 9, 2021, the date the defendant first appeared in court. The defendant maintains that a criminal summons and appearance ticket are distinct instruments and that only the appearance ticket gets the benefit of a commencement date linked to the date that the defendant first appears in court. Absent that exception, the action commenced on or shortly after August 17, 2021, with the filing of the original accusatory instrument and the October 5, 2021 statement of readiness was untimely.
It is settled that the speedy trial clock begins to run upon the filing of the original accusatory instrument, or if the defendant is given an appearance ticket, the speedy trial clock begins to run on the date the defendant first appears in court on the appearance ticket. CPL § 30.30 (1) ; People v. Smietana, 98 NY2d 336 [2002] ; People v. Paris, 79 NY2d 69 [1992] ). As pointed out by the defendant, the Criminal Procedure Law establishes distinct methods for securing a defendant's appearance in court, which include the summons, appearance ticket and arrest warrant. See, CPL § 110.10 (1) (a)-(c). Further, and of relevance here, the criminal summons and appearance ticket have different statutory definitions and they function differently. (compare, CPL § 150.10 with CPL § 130.10 ). Notably, the appearance ticket is issued and subscribed by a police officer or other person authorized to enforce any statute or local law. CPL § 150.10. On the other hand, the criminal summons is issued by a local criminal court. CPL§ 130.10.
A defendant seeking dismissal of an accusatory instrument based upon speedy trial grounds has the initial burden of "alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period" ( People v. Luperon, 85 NY2d 71, 77-78 [1995] ). Once the defense motion is made, the burden shifts to the People to show that the delay was not chargeable to the People or that the time should be excluded, and where the People fail to controvert the factual basis for the motion by identifying specific statutory exclusions or exceptions on which they rely, the dismissal motion must be granted ( People v. Santos, 68 NY2d 859, 861 [1986] ).
Here, defendant met his initial burden by alleging that the People failed to declare readiness within thirty (30) days of the commencement of the criminal action. CPL § 30.30 (1) (d). Here, this action commenced and the speedy trial clock began to run on or about August 23, 2021, when the information charging harassment in the second degree was filed with this court ( People v. Keen Equities , 36 Misc 3d 138 (A) [App Term. 2012]) and the People declared readiness more than thirty days later, on October 5, 2021. Based on defendant's showing, the burden shifts to the People. In opposition, the People contend that the ‘criminal summons’ issued in this matter was ostensibly an appearance ticket in that "it conformed with the requirements of and functioned identically to an appearance ticket under CPL § 150.10 (1)" (Engelhart Affirmation, par 6). No case law or other authority is offered by the People to support this argument.
It is true that the criminal summons and appearance ticket share a similar function of obtaining the defendant's appearance in a named court on a specified date and time. However, as noted above, the requirements of these instruments are different—the appearance ticket is signed and issued by law enforcement whereas the criminal summons is subscribed to and issued by the court. The appearance ticket must be served personally upon the defendant. CPL § 150.40 (2). There is no statutory direction on how the summons is to be served, and it is often served by mail. Therefore, it cannot be said that the summons and appearance ticket conform to the same requirements. (compare CPL § 150.10 with CPL § 130.10 ).
Moreover, in terms of the commencement date for speedy trial purposes, the legislature carved out a specific exception from the date of filing commencement date when it provided in CPL § 30.30 (7)(b) that "where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court" CPL § 30.30 (7)(b) (emphasis supplied). By its terms, this exception is not applicable to the criminal summons. As aptly noted by another court, if "the legislature sought to include the summons situation within the scheme established by [ CPL§ 30.30(7)(b) ], they would have specifically done so" ( People v. Eckert, 117 Misc 2d 504, 506 [1983] ; see also, People v. Figuras, 72 Misc 3d 1212(A) [2021] ). This court is bound to follow the statutory scheme enacted by the legislature, and it is not free to add to or detract from the statutory mandates.
Defendant's motion to dismiss on the ground that the People violated his statutory right to a speedy trial is granted. As discussed above, the defendant met his burden on the motion of demonstrating that the People did not announce their readiness for trial within thirty days of August 23, 2021, the date of commencement of the criminal action. In opposition, the People have failed to convincingly refute the position of the defendant. The People do not allege any excludable time under CPL § 30.30. The People have not pointed to any case law that supports their expansive construction of these speedy trial provisions. Finally, the People have failed to establish that they may rely on the exception set forth under CPL § 30.30 (7)(b) because that exception applies only to an appearance ticket.
Based on the foregoing, it is hereby
ORDERED, that defendant's speedy trial motion is hereby granted and the charge against him is dismissed.
SO ORDERED.