Opinion
No. 22050138
02-24-2023
People of the State of New York v. Tyrone L. Johnson, Defendant.
Sandra Doorley, District Attorney, Monroe County (Stephen F. Ryck of Counsel), for plaintiff. Julie Cianca, Monroe County Public Defender (Andrew Kij of Counsel), for defendant.
Unpublished Opinion
Sandra Doorley, District Attorney, Monroe County (Stephen F. Ryck of Counsel), for plaintiff.
Julie Cianca, Monroe County Public Defender (Andrew Kij of Counsel), for defendant.
Thomas J. DiSalvo, J.
Facts of the Case.
The defendant was charged with operating a motor vehicle impaired by drugs, VTL § 1192 (4), drove across hazard marking, VTL 1128 (d), moved from lane unsafely, VTL § 1128 (a), and unlicensed operator, VTL § 509 (1) on May 19, 2022 at 9:01 P.M. on NYS Route 104 as it passed through the Town of Webster. The defendant was given simplified traffic informations, as defined by CPL § 1.20 (5) (b), by the arresting Webster Police Officer, which stated that "The matter is scheduled to be handled on the appearance date below", to wit: June 22, 2022. In addition the defendant was served with a Uniform Appearance Ticket, wherein the defendant was directed to appear on the said date of June 22, 2022.
The defendant duly appeared on that date for arraignment. However, the arraignment was adjourned to August 3, 2022 by the Court to allow the defendant to secure the services of an attorney. On that date the defendant was arraigned, while represented by the Public Defender's Office. The matter was then adjourned for further disposition to September 7, 2022 at the request of the defense counsesl. It was again adjourned to September 21, 2022 for further disposition. However, since the defendant failed to appear on that date, the matter was adjourned to October 19, 2022 for the appearance of the defendant at the request of defense counsel. The defendant did appear on October 19th, whereupon the case was adjourned for motion argument on December 21, 2022. On October 20, 2022 defense counsel filed Omnibus Motions with the court. In addition, defense counsel filed a motion to dismiss the charge of operating a motor vehicle impaired by drugs, VTL § 1192 (4), wherein it was requested that said charge be dismissed due to the defendant being denied a speedy trial based on the prosecution not having declared readiness within the statutorily prescribed time frame pursuant to CPL §§ 30.30 and 170.30 (1) (e). On December 21, 2022 the mater was further adjourned to for a decision on the defendant's speedy trial motion. The People had not filed with the Court a Certificate of Compliance/Readiness for Trial as of the date of the defendant's speedy trial motion, to wit December 19, 2022.
Issues Presented.
How much time should be chargeable to the People?
Were the People ready for trial within the niney days as required by CPL 30.30 (1) (b)?
Legal Analysis.
The court has reviewed the motions of the defendant, the cross motion and responding affirmation of the prosecutor and the court's file. In so doing the court has charged the time as follows:
The time between the issuance of the uniform appearance ticket, i.e, May 19, 2022 through the date of the defendant's first appearance in court, without an attorney, which was June 22, 2022, for a total of 34 days is excluded. CPL § 30.30 (7) (b) states "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 in response to the ticket." On June 22, 2022 the case was adjourned for 41 days to August 3, 2022 for appearance of a defense attorney and for arraignment. That period of time cannot be chargeable to the People. CPL § 30.30 (4) (f) requires" the period during which the defendant is without counsel through no fault of the court; except when the defendant is proceeding as his own attorney with the permission of the court" be excluded. The adjournment at the defendant's request from August 3, 2022 through September 7, 2022 for a total of 34 days is chargeable to the defendant. The case was adjourned at the request of the defense for disposition on September 7, 2022 to September 21, 2022. That period of 14 days must be chargeable to the defendant and excluded. The defendant failed to appear on September 21, 2022. At the request of the defense the case was adjourned to October 19, 2022, a period of 28 days to give the defendant an opportunity to appear. CPL § 4 (b) states in pertinent part that "In computing the time within which the people must be ready for trial pursuant to Subdivisions one and two of this section, the following periods must be excluded: the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel." CPL § 30.30 (4) (c) (1) further excludes
"the period of delay resulting from the absence or unavailability of the defendant. A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence. A defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence."
(See also People v. Dugan, 273 A.D.2d 704, 705, 711 N.Y.S. 531, 532 [2000]).
Certainly in this case there was no allegation that the defendant's location was unknown. In fact the defendant could not be considered either "absent" or "unavailable" based on the definition set out in the statute. It is uncontroverted that the matter was adjourned on September 21, 2022 to the court's next date which was October 19, 2022, at the request of defenses counsel. As was stated in People v. Acosta, 76 Misc.3d 868, 875, 174 N.Y.S.3d 253 (2022)
"... the Court can find no rationale upon which to charge the People with this time, whether the exclusion is held to be under § 30.30 [4][b] or 30.30 [4][c][i]. The delay clearly was due not to the People's "dereliction," but to defense counsel's request [or consent] that the court give Defendant another chance to appear as required for arraignment under CPL § 170.65[1], without suffering any consequences. (see, e.g., People v. Carter, 91 N.Y.2d 795, 799, 676 N.Y.S.2d 523, 699 N.E.2d 35 [1998])."
The defendant did appear with his attorney on October 19, 2022, at which time the case was adjourned for omnibus motion argument to December 21, 2022, a period of 53 days. CPL § 30.30 (4) (a) states
"In computing the time within which the people must be ready for trial pursuant to subdivisions one and two of this section, the following periods must be excluded: a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court".
Thus that period of 53 days is not chargeable to the People and is thereby excluded. On December 21, 2022, rather than argue the Omnibus Motions, the court entertained the defendant's motion to dismiss on CPL 30.30 (1) (b) grounds. The case was then adjourned to to review the People's response and to decide the said motion. That time is also excluded.
(See CPL § 30.30 (4) (a)).
CPL § 30.30 (1) (b) requires that the prosecution establish its readiness for trial in ninety days from the commencement of a misdemeanor action. That time is extended based on various exclusions as set out in CPL § 30.30 (4).To date in this matter the People have not filed a Certificate of Compliance and Statement of Readiness, wherein the People indicate that they have provided all the required discovery to the defense. At the time the defense motion to dismiss was filed, there was no indication that any discovery was outstanding. Since that time the court was advised by both counsel that body worn camera footage was provided to defense counsel on February 17, 2023. Certainly, body worn camera footage is part of the prosecution's initial discovery obligation.
CPL § 245.10 (1) (ii) states that "When the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within thirty-five calendar days after the defendant's arraignment on [a], prosecutor's information, information, simplified information, misdemeanor complaint...." Failure to comply with this initial disclosure requirement can result in the sanctions set out in CPL 245.80.
The defendant was never in custody during the pendency of this case.
"When material or information is discoverable under this article but is disclosed belatedly, the court shall impose a remedy or sanction that is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure. Regardless of a showing of prejudice the party entitled to disclosure shall be given reasonable time to prepare and respond to the new material."
(CPL § 245.80 [1] [a]).
Primary sanctions that could be imposed by the court, assuming the time frames set out in CPL § 30.30 (1) have not been violated, are as follows"
" For failure to comply with any discovery order imposed or issued pursuant to this article, the court may make a further order for discovery, grant a continuance, order that a hearing be reopened, order that a witness be called or recalled, instruct the jury that it may draw an adverse inference regarding the non-compliance, preclude or strike a witness's testimony or a portion of a witness's testimony, admit or exclude evidence, order a mistrial, order the dismissal of all or some of the charges provided that, after considering all other remedies, dismissal is appropriate and proportionate to the prejudice suffered by the party entitled to disclosure, or make such other order as it deems just under the circumstances; except that any sanction against the defendant shall comport with the defendant's constitutional right to present a defense, and precluding a defense witness from testifying shall be permissible only upon a finding that the defendant's failure to comply with the discovery obligation or order was willful and motivated by a desire to obtain a tactical advantage."
(CPL § 245.80 [2]).
Assuming the commencement of the action was the date the defendant appeared in court in response to an appearance ticket, to wit: June 22, 2022, 247 days would have gone by as of the next adjourned date of February 24, 2022.However, as previously indicated none of that time is chargeable to the People. As a result, the People still have a 90 day window in which to declare readiness for trial. Certainly, the body worn camera footage was "disclosed belatedly" However, the court is unaware of any "prejudice suffered" by the defense. Nor has the defense alleged that the defendant was prejudiced by the fact that the said body worn camera footage was belatedly provided.
CPL § 245.50 (1) states in pertinent part "When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article.... it shall serve upon the defendant and file with the court a certificate of compliance. That apparently final piece of discovery was not provided to the defendant until February 17, 2023. Thus the duty to file the Certificate of Compliance was not in effect until that time. Finally, CPL 245.50 (3) states that "Notwithstanding the provisions of any other law, absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section."
(CPL § 30.30 [1] [b]).
(CPL §§ 245.10 [1] [a] [ii] & CPL 245.80 [1] [a].
Conclusion.
The motion to dismiss the charges herein pursuant to CPL §§ 30.30 and 170.30 (1) (e) is hereby denied. At this time the court would not impose any sanctions provided by CPL § 245.80, since no prejudice to the defendant to date has been alleged by the defendant as would be required by CPL § 245.80 (1) (a).This constitutes the decision and order of this court.