Opinion
4862/16
03-22-2018
The PEOPLE of the State of New York, Plaintiff v. Artie KELING, Defendant.
Defendant is charged with two counts of Criminal Possession of a Weapon in the Second Degree in violation of Penal Law §§ 265.03(3) and 265.03(1)(b) and one count of Resisting Arrest in violation Penal Law § 205.30. He now moves for an order dismissing the indictment, claiming that he has been denied his right to a speedy trial pursuant to CPL § 30.30(1)(a). The People oppose the motion. For the reasons stated below, the Court finds 187 days chargeable to the People and accordingly, defendant's motion to dismiss is granted.
CPL § 30.30(1)(a) requires dismissal of an indictment if the People are not ready for trial within six months of the commencement of the action, in this case 181 days, absent excludable time. In calculating time pursuant to CPL § 30.30, the Court must compute the time between the filing of the accusatory instrument and the People's statement of readiness, subtracting any time which is excluded pursuant to the statue, and adding any post-readiness delays that are attributable to People which are not eligible for an exclusion. See People v. Cortes , 80 NY2d 201, 208 (1992).
Both parties agree in their moving paper that at least 144 days are chargeable to the People. The two adjournments upon which they disagree are (1) from September 13 to October 19, 2017, a period of 36 days, and (2) from February 21 to March 1, 2018, a period of seven days. The Court finds neither adjournment fits within a statutory exclusion to speedy trial calculation.
September 13 to October 19, 2017
On September 13, 2017, the case was scheduled for trial and the People announced that they were not ready to proceed, explaining that there was "evidently a pending related I-A-B matter; the assigned Assistant and the defense counsel need to discuss that before setting a date." The Court asked Paul Brenner, counsel to the defendant at that time, if he was aware of that situation. Rather than responding to the question, Mr. Brenner asked to speak to the Court and a bench conference ensued. Following the bench conference, the Court reiterated for the record that the People were not ready for trial, adjourned the case to October 19 as a "control date" and stated that a trial date would be selected on October 19. No additional record regarding the contents of the bench conference was made by any, party nor did the defense indicate his consent to the adjournment.
The defendant argues that this adjournment should be charged to the People since he did not explicitly consent to the adjournment on the record. The People argue the adjournment is excludable, even though they were not ready for trial on September 13, because the case was adjourned for a control date rather than a trial date, indicating that there had been consent by the defendant. More particularly, relying upon "notes made on the People's indictment jacket from that date by the standing ADA," the People assert that at the bench conference on September 13, Mr. Brenner informed the Court that he had recently suffered a stroke. The People requested, and the Court granted, that the case be adjourned for a ‘control’ date and not a trial date." The now People argue that this supposed conversation at the bench rendered the subsequent adjournment excludable as it demonstrated that Mr. Brenner was "functionally unavailable" to try the case, and that Mr. Brenner's failure to protest an adjournment for "control" rather than trial was tantamount to a consent to waive speedy trial time. The Court disagrees on both counts.
In reconstructing the events of September 13, 2017, the Court is constrained by the transcript recording statements by the parties. Statements made during bench conferences do not become part of the case history unless they are thereafter memorialized on the record either orally or in writing. Accordingly, a defense consent to an adjournment "must be clearly expressed by the defendant or defense counsel to relieve the People of the responsibility for that portion of the delay." People v. Liotta , 79 NY2d 841 (1992), accord , People v. Kendzia , 64 NY2d 331, 337 (1985) (People's statement of readiness null unless transcribed by a stenographer or communicated in writing).
Based on the transcript of the proceedings, the only conclusions the Court can reach with certainty is that on September 13 the People were not ready for trial, the case was adjourned to October 19 for a reason other than trial, and that neither defense counsel, the People nor the Court stated that the adjournment was on consent. The People's suggestions regarding what occurred during the bench conference may be true, but they lack the imprimatur of support in the record and are thus tantamount to speculation. Any ambiguity regarding the proceedings, absent a clear statement of consent, must be resolved in favor of the defendant. Accordingly, the 36 days period from September 13 to October 19, 2017 is charged to the People.
Notably, neither side has submitted an affidavit from a participant in the bench conference.
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February 21 to March 1, 2018
On February 21, 2018, the matter was scheduled for hearings. The People announced that they were not ready because a necessary witness was on vacation and requested a one week adjournment. The defendant argues the People should be charged with 7 days. The People assert this adjournment is excludable pursuant to CPL § 30.30 (4)(g), since the Officer Rivera was a necessary witness, and they had reasonable grounds to believe that he will be available in a reasonable time. This contention is baseless.
CPL § 30.30 (4)(g), states the Court must exclude period of delay occasioned by exceptional circumstances. Examples set forth by the statute include a delay caused by the unavailability of evidence material to the People's case "when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period." In relying upon this exception, the People entirely ignore its requirement that they exercise due diligence to procure attendance of the witness on the trial date. The People make no claim to have exercised due diligence, they simply ask for the benefit of this exceptional circumstance exclusion because the witness would return from vacation within a reasonable time. Vacation plans of the People's witnesses do not constitute exception circumstances for the purposes of speedy trial CPL § 30.30 (4)(g). People v. Thomas , 210 AD2d 736, 378 (3d Dept. 1994) ; People v. Apodoca , 156 Misc 2d 133, 137-38 (Sup. Ct. NY Cty 1992) ; People v. Mims , 155 Misc 2d 163 (Sup. Ct. NY Cty 1992). Accordingly, this adjournment s charged to the People.
Conclusion
Based on the Court's analysis, the People are charged with 187 days which exceeds their time to answer ready for trial. Accordingly, the defendant's motion to dismiss for lack of a speedy trial is granted.
This opinion shall constitute the decision and order of the Court.