Opinion
2076/14
08-02-2016
The People of the State of New York v. Young Kim, Defendant.
Appearing on behalf of the People: Assistant District Attorney Mary Weisgerber Office of the District Attorney New York County 1 Hogan Place New York, NY 10013 (212) 335-9000 Appearing on behalf of the defendant: Susan J. Walsh, Esq. Vladeck, Raskin & Clark, P.C. 565 Fifth Avenue — 9th Floor New York, NY 10017 (212) 403-7300
Appearing on behalf of the People: Assistant District Attorney Mary Weisgerber Office of the District Attorney New York County 1 Hogan Place New York, NY 10013 (212) 335-9000 Appearing on behalf of the defendant: Susan J. Walsh, Esq. Vladeck, Raskin & Clark, P.C. 565 Fifth Avenue — 9th Floor New York, NY 10017 (212) 403-7300 Jill Konviser, J.
By indictment number 2076/14, the defendant is charged with Assault in the First Degree, and related offenses. The defendant has now filed a motion for dismissal of the indictment on statutory speedy trial grounds pursuant to C.P.L. § 30.30(1), and dismissal of the indictment based on Constitutional speedy trial grounds. The People oppose the motion. Based upon a review of the court file, the relevant transcripts, and the papers filed by the parties, the defendant's motion is denied.
Pursuant to C.P.L. § 30.30(1)(a), the People are required to be ready for trial within six months of the commencement of the criminal action. Here, an accusatory instrument was filed against the defendant on March 25, 2014. For the purposes of speedy trial calculation, the day following the commencement of the action is deemed to be the first day. See People v. Stiles, 70 NY2d 765 (1987). As the six month period in which the People are required to be ready for trial is measured by the number of days in the intervening calendar months, the People are required to be ready for trial in this matter within 184 days following the commencement of the action. See People v. Cortes, 80 NY2d 201 (1992). Whether the People have satisfied the six month requirement is determined by computing the time elapsed between the commencement of the action and the People's declaration of readiness, subtracting any periods of delay that are excludable by statute and then adding to the result any postreadiness periods of delay that are attributable to the People and are ineligible for an exclusion. Id. at 208. The Court makes the following findings of fact and conclusions of law with respect to the speedy trial time incurred in this case.
Calculation of Speedy Trial Time
March 25, 2014 to June 17, 2014
The defendant was arrested on March 25, 2014 and a felony complaint was filed against him. The defendant was arraigned and the case was adjourned to July 30, 2014 for grand jury action.
On May 14, 2014, however, the People filed the indictment and a Certificate of Readiness. The case was subsequently administratively adjourned to June 17, 2014, for the defendant's Supreme Court arraignment. The People are charged only with the time period from March 25, 2014 to the day they filed the Certificate of Readiness — May 14, 2014. See People v. Correa, 77 NY2d 930 (1991); People v. Shu, 216 AD2d 46 (1st Dept. 1995). (49 days) June 17, 2014 to July 15, 2014
The defendant, relying on People v. Sibblies, 22 NY3d 1174 (2014), argues that the Certificate of Readiness was rendered illusory by the People's lack of readiness at a later time. That argument is addressed infra.
For the purpose of speedy trial calculation, the day following the commencement of the action is deemed to be the first day. See People v. Stiles, 70 NY2d 765 (1987).
On June 17, 2014, the defendant was arraigned in Supreme Court and, at his request, a motion schedule was set. This time period is excluded, as adjournments related to motion practice are not charged to the People. See C.P.L. § 30.30(4)(a); People v. Fagan, 260 AD2d 219 (1st Dept. 1999). (0 days) July 15, 2014 to August 5, 2014
On July 15, 2014, the defendant filed an omnibus motion and the case was adjourned to August 5, 2014 for the People's response. This time period is excluded, as adjournments related to motion practice are not charged to the People. See C.P.L. § 30.30(4)(a); People v. Fagan, 260 AD2d 219 (1st Dept. 1999). (0 days) August 5, 2014 to August 19, 2014
On August 5, 2014, the People neither filed a response nor the Grand Jury minutes for the Court's review. The case was adjourned to August 19, 2014 for that purpose. This time period — not an unreasonable period of delay occasioned by the defendant's motion — is not charged to the People. See People v. Harris, 82 NY2d 409 (1993). (0 days) August 19, 2014 to September 16, 2014
On August 19, 2014, the People filed their response and the Grand Jury minutes for the Court's review. The case was adjourned to September 16, 2014 for decision. This time period, during which the defendant's motion was under consideration by the Court, is excluded. See People v. Shannon, 143 AD2d 572 (1st Dept. 1988). (0 days) September 16, 2014 to November 5, 2014
On September 16, 2014, the case was adjourned to November 5, 2014 for trial. This time period is excluded, as the People are entitled to a reasonable adjournment for the purpose of trial preparation. See People v. Mears, 55 AD3d 439 (1st Dept. 2008); People v. Reed, 19 AD3d 312 (1st Dept. 2005); People v. Sonds, 287 AD2d 319 (1st Dept. 2001). (0 days) November 5, 2014 to December 9, 2014
Although it appears that the case had been adjourned to November 5, 2014, it was included on the Court's calendar for November 3, 2014. As the defendant failed to appear in court on November 3, 2014, a bench warrant was issued for his arrest. On November 5, 2014, the defendant voluntarily appeared with his attorney. Defense counsel informed the Court that she believed the case had been adjourned to November 5, 2014, and, as a result, neither she nor the defendant had appeared in Court on November 3, 2014. Based on counsel's representations, the Court vacated the bench warrant.
Defense counsel submitted, off-calendar, an affirmation dated September 25, 2014, indicating that she would not be ready for trial until December 8, 2014, as she expected to be on trial in a federal matter. Counsel requested, therefore, December 8, 2014 or a date thereafter for trial.
The defendant now contends that the People should be charged with this time period as they were not ready for trial. The defendant's argument fails to take into account the affirmation filed by his attorney, requesting that the case be adjourned to December 8, 2014, or a date thereafter, as she expected to be engaged on trial in a federal matter, and, thus, was unavailable to try the defendant's case. In other words, the People, based on counsel's affirmation to the Court, were not required to be ready. Indeed, the case could not proceed to trial without defense counsel, who had filed an affirmation attesting to her unavailability. Accordingly, and, as the adjournment was specifically at the defendant's request to accommodate his attorney's schedule, this time period is excluded. See People v. Reed, 19 AD3d 312 (1st Dept. 2005); People v. Mears, 55 AD3d 439 (1st Dept. 2008); People v. Coyle, 36 Misc 3d 158(A) (NY Sup. App. Term 2012). (0 days) December 9, 2014 to February 17, 2015
As December 8, 2014 was not the Court's calendar day, the Court, instead, adjourned the case to December 9, 2014 for trial.
Nevertheless, the defendant argues that not only should the People be charged with this time period, but that their lack of readiness renders illusory the Certificate of Readiness filed on May 14, 2014. The defendant cites to People v. Sibblies, 22 NY3d 1174 (2014) in support of his position. The defendant's argument rests, however, on the assumption that the People were required to be ready for trial on November 5, 2014. They were not, based on counsel's affirmation to that effect. In any event, the defendant's reliance on Sibblies is misplaced. Indeed, Sibblies does not conclude that any subsequent lack of readiness per se renders an earlier Certificate of Readiness illusory. And, to so hold here, where the defendant requested, by affirmation, a lengthy adjournment to accommodate his attorney's schedule, would be simply unfair.
On December 9, 2014, the People indicated that they were ready for trial. As there were no trial parts available, however, the case was adjourned to February 17, 2015 for trial. As the People were ready for trial, this time period is excluded. (0 days) February 17, 2015 to February 23, 2015
On February 17, 2015, the People indicated that they were ready for trial. Defense counsel was, however, unavailable due to a medical issue and a colleague appearing on her behalf requested that the case be adjourned to February 23, 2015. The case was adjourned to February 23, 2015 for trial. As the People were ready for trial and the adjournment was at the defendant's request due to the unavailability of his attorney, this time period is excluded. (0 days) February 23, 2015 to March 3, 2015
On February 23, 2015, the People indicated that they were ready for trial. Defense counsel was, however, not ready for trial due to continuing medical issues. The case was adjourned to March 3, 2015 for trial. As the People were ready for trial and the adjournment was at the defendant's request due to the unavailability of his attorney, this time period is excluded.(0 days) March 3, 2015 to March 4, 2015
On March 3, 2015, the People indicated that they were ready for trial. As there were no trial parts available, however, the case was adjourned to March 4, 2015 for trial. As the People were ready for trial, this time period is excluded. (0 days) March 4, 2015 to April 30, 2015
On March 4, 2015, the People indicated that they were ready for trial. Again, there were no trial parts available. In light of the number of witnesses, including a practicing doctor, the Court adjourned the case to April 30, 2015 for a conference, to determine whether the attorneys and witnesses continued to be available for May 12, 2015, when the case was expected to proceed to trial. As the People were ready for trial, this time period is excluded. (0 days) April 30, 2015 to June 9, 2015
On April 30, 2015, the case was administratively adjourned to June 9, 2015 — a date agreeable to both parties — for trial.
The Court was unexpectedly unavailable on April 30, 2015, and, therefore, the case was adjourned.
The defendant now contends that as the People were not ready for trial on April 30, 2014, this time period must be charged to them. As noted above, however, the People were not expected to be ready for trial on April 30, 2014. This time period is, therefore, excluded. (0 days) June 9, 2015 to July 21, 2015
On June 9, 2015, the People indicated that they were ready for trial. Defense counsel was, however, unavailable due to a medical issue and a colleague appearing on the case requested six weeks to pick a trial date. The case was adjourned to July 21, 2015 for "control." As the People were ready for trial and the adjournment was at the defendant's request due to the unavailability of his attorney, this time period is excluded. (0 days) July 21, 2015 to September 1, 2015
On July 21, 2015, defense counsel was again unavailable due to an ongoing medical issue. The case was adjourned to September 1, 2015, for an update on counsel's condition. As the adjournment was at the defendant's request due to the unavailability of his attorney, this time period is excluded. (0 days) September 1, 2015 to October 13, 2015
On September 1, 2015, defense counsel appeared in Court and the case was adjourned to October 13, 2015 for trial. As the People were not expected to be ready for trial and the case had been adjourned at the defendant's request to pick a trial date, this time period is excluded. (0 days) October 13, 2015 to October 27, 2015
On October 13, 2015, the People informed the Court that an eyewitness to the alleged crime had been hospitalized "in very serious condition," and requested a one-day adjournment to determine whether the witness would be available to testify. The defendant, however, objected to the one-day adjournment. Indeed, defense counsel informed the Court that the witness was "a critical defense witness," and that to protect the defendant's "due process rights," she would need "more than a week" to determine whether the witness would be able to testify. The case was adjourned to October 27, 2015 for control, to determine the witness's availability and to set a trial date. As the People had answered ready previously, and it was defense counsel who specifically requested a longer adjournment, the People are only charged with one day. See People v. Bailey, 221 AD2d 296 (1st Dept. 1995); People v. Urraea, 214 AD2d 378 (1st Dept. 1995); People ex rel. Sykes v. Mitchell, 184 AD2d 466 (1st Dept. 1992). (1 day) October 27, 2015 to December 8, 2015
On October 27, 2015, the People informed the Court that the eyewitness remained hospitalized and was expected to be hospitalized for several more weeks. As a result, the People requested December 8, 2015 for trial. As the case was on for an update with respect to the witness's condition, rather than trial, the People were not expected to be ready for trial. Accordingly, this time period is excluded. (0 days) December 8, 2015 to January 26, 2016
On December 8, 2015, the People informed the Court that they were not ready for trial and requested January 12, 2016, or a date thereafter. When the Court suggested January 19, 2016 for trial, defense counsel indicated that she was "not available then" and asked for January 26, 2016 instead. The case was adjourned to January 26, 2016 for trial. As the People had answered ready previously, and it was defense counsel who specifically requested a longer adjournment, the People are only charged with the period of time from December 8, 2015 to January 12, 2016. See People v. Bailey, 221 AD2d 296 (1st Dept. 1995); People v. Urraea, 214 AD2d 378 (1st Dept. 1995); People ex rel. Sykes v. Mitchell, 184 AD2d 466 (1st Dept. 1992). (35 days) January 26, 2016 to March 1, 2016
The defendant, relying on People v. Sibblies, 22 NY3d 1174 (2014), argues that as the People failed to articulate the basis for their lack of readiness on December 8, 2015, the Certificate of Readiness filed on May 14, 2014 should be deemed illusory, and the People should, therefore, be charged with the entirety of each subsequent adjournment for trial. The defendant's argument is unavailing. In Sibblies, the Court of Appeals held that a Certificate of Readiness filed off-calendar may not hide behind a presumption of validity when the People, at the very next court appearance, declare that they are not ready to proceed to trial. To be sure, the instant matter is markedly different from the facts and circumstances present in Sibblies. Indeed, the People filed the Certificate of Readiness on May 14, 2014, and, when first adjourned specifically for trial, answered ready for trial in court. The People then continued to answer ready at each appearance for several months. Quite simply, then, Sibblies does not apply.
On January 26, 2016, the People indicated that they were not ready for trial and requested February 2, 2016, for trial. Defense counsel, however, indicated that the "next available time" that she could try the case was "March the first." The case was adjourned to March 1, 2016 for trial. As the People had answered ready previously, and it was defense counsel who specifically requested a longer adjournment, the People are only charged with the period of time from January 26, 2016 to February 2, 2016. See People v. Bailey, 221 AD2d 296 (1st Dept. 1995); People v. Urraea, 214 AD2d 378 (1st Dept. 1995); People ex rel. Sykes v. Mitchell, 184 AD2d 466 (1st Dept. 1992). (7 days) March 1, 2016 to April 5, 2016
On March 1, 2016, the People indicated that the assigned Assistant District Attorney, a member of the military, had been deployed and a new Assistant had been assigned. As a result, the People were requesting two weeks to prepare for trial. Defense counsel indicated, however, that she could not "be ready in two weeks" for trial and requested April 5, 2015 instead. The case was adjourned to April 5, 2016 for trial. As the People had answered ready previously, and it was defense counsel who specifically requested a longer adjournment, the People are only charged with the period of time from March 1, 2016 to March 15, 2016. See People v. Bailey, 221 AD2d 296 (1st Dept. 1995); People v. Urraea, 214 AD2d 378 (1st Dept. 1995); People ex rel. Sykes v. Mitchell, 184 AD2d 466 (1st Dept. 1992). (14 days) April 5, 2016 to May 9, 2016
On April 5, 2016, the People indicated that they were not ready for trial as one of the witnesses — a doctor — had retired and an additional witness had "returned to Korea." As a result, the People requested April 19, 2016 for trial. Defense counsel indicated, however, that April 19, 2016 was "not a good date," and that the defendant was instead requesting April 26, 2016. The assigned Assistant District Attorney indicated that she was out of the office from "the very end of the last week in April and the first week in May." The Court adjourned the case to May 9, 2016 for trial. As the People had answered ready previously, and it was defense counsel who specifically requested a longer adjournment, the People are only charged with the period of time from April 5, 2016 to April 19, 2016. See People v. Bailey, 221 AD2d 296 (1st Dept. 1995); People v. Urraea, 214 AD2d 378 (1st Dept. 1995); People ex rel. Sykes v. Mitchell, 184 AD2d 466 (1st Dept. 1992). (14 days) May 9, 2016 to May 24, 2016
On May 9, 2016, the People indicated that they were ready for trial. Defense counsel, however, indicated that she would be filing a speedy trial motion. The case was adjourned to May 24, 2016 for the People's response to the speedy trial motion. This time period is excluded. See People v. Shannon, 143 AD2d 572 (1st Dept. 1988). (0 days) May 24, 2016 July 5, 2016
On May 24, 2016, the People filed their response to the defendant's speedy trial motion. The defendant was directed to file his reply by May 31, 2016, and the case was adjourned to July 5, 2016 for decision. This time period is excluded. See People v. Vidal, 180 AD2d 447 (1st Dept. 1992). (0 days) July 5, 2016 to August 2, 2016
On June 28, 2016, the People filed, off-calendar, a sur-reply to the defendant's motion. On July 5, 2016, the defendant requested an opportunity to respond to the People's sur-reply. The defendant was directed to file and serve his response within two weeks, and the case was adjourned to August 2, 2016 for decision. This time period is excluded. See People v. Vidal, 180 AD2d 447 (1st Dept. 1992). (0 days)
Based on the foregoing, with respect to the defendant's motion for dismissal pursuant to C.P.L. § 30.30(1), the People are charged with 120 of the 184 total days to which they are entitled. Accordingly, the defendant's motion for dismissal pursuant to C.P.L. § 30.30(1) is denied.
Constitutional Speedy Trial Claim
The defendant also moves this Court to dismiss the indictment based on Constitutional speedy trial grounds. The defendant's motion is denied.
In determining whether a defendant's Constitutional speedy trial rights have been violated, a court must consider: "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay." People v. Taranovich, 37 NY2d 442, 445 (1975). Mere delays in bringing a case to trial are insufficient to support a motion to dismiss based on Constitutional speedy trial grounds. See People v. Marrero, 259 AD2d 836 (3d Dept. 1999). Under the particular facts and circumstances of this case, this Court finds that the defendant's Constitutional speedy trial rights were not violated.
In the instant matter, many of the adjournments were explicitly requested by the defendant due to the unavailability of his attorney. Moreover, several adjournments resulted from the lack of a court part available to conduct the trial. Indeed, there are very few adjournments directly attributable to the People. Additionally, the defendant, who posted bail at the very outset of the case, remained at liberty during the pendency of the case. Perhaps even more significantly, the defendant has simply failed to demonstrate that his defense has been impaired by any alleged delay. See People v. Johnson, 234 AD2d 390 (2d Dept. 1996). Accordingly, the defendant's motion to dismiss the indictment based on Constitutional speedy trial grounds is denied.
Conclusion
The defendant's motion is denied. This constitutes the Decision and Order of the Court. Dated: New York, New York
August 2, 2016
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J.S.C.