Opinion
04-05-2018
The PEOPLE of the State of New York, Respondent, v. Claudette LACAST, Appellant.
Young & Young, LLP. (Richard W. Young of counsel), Central Islip, for appellant. Suffolk County District Attorney (Alfred J. Croce of counsel), for respondent.
Young & Young, LLP. (Richard W. Young of counsel), Central Islip, for appellant.
Suffolk County District Attorney (Alfred J. Croce of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ.
ORDERED that the judgment of conviction is affirmed.
Defendant was issued a desk appearance ticket on December 7, 2010 in connection with an alleged violation of Agriculture and Markets Law § 353. On the February 8, 2011 return date, defendant was arraigned on a misdemeanor complaint charging her with the same offense, and defense counsel submitted discovery demands. The case was subsequently adjourned three times prior to the People's submission of their response to defendant's demands on May 6, 2011, which submission included a CPL 710.30 notice. On May 6th, the case was adjourned so that the defense could file a motion. By notice of motion returnable in July 2011, defendant moved for, among other things, preclusion of evidence of her oral statements, and dismissal of the misdemeanor complaint on the ground that it was facially insufficient or, in the alternative, on the ground that her statutory right to a speedy trial had been violated. The People opposed the motion. By order dated September 12, 2011, the District Court (Paul M. Hensley, J.) granted the branch of defendant's motion seeking dismissal of the misdemeanor complaint on the ground that it was facially insufficient, finding that the veterinarian's letter purportedly used to convert the complaint to an information had not been properly verified.
On October 3, 2011, the People filed a misdemeanor information which charged defendant with violating Agriculture and Markets Law § 353 based on the same incident that had been the basis for the prior misdemeanor complaint. On October 4, 2011, a criminal summons containing a November 15, 2011 return date was issued, and the District Court instructed the police department to personally serve the summons on defendant. On October 12, 2011, the People filed a statement of readiness with the court and mailed a copy of the statement to defendant. Defendant failed to appear in court on November 15th, and a bench warrant was issued for her arrest on November 22, 2011. Defendant voluntarily appeared in court on December 1, 2011, the warrant was vacated, defendant was arraigned on the misdemeanor information, and the People filed a new CPL 710.30 notice. The case was adjourned to December 2, 2011, on which date defense counsel submitted discovery demands and requested an adjournment to file a motion. By notice of motion returnable in April 2012, defendant moved for, among other things, dismissal of the misdemeanor information on the ground that it was facially insufficient or, in the alternative, on the ground that her statutory right to a speedy trial had been violated since more than 90 days of delay were chargeable to the People for the time period of December 7, 2010 to March 6, 2012. In the alternative, defendant's motion sought to preclude evidence of her oral statements on the ground that the CPL 710.30 notice had been untimely. The People submitted opposition to the motion, to which defendant replied. By order dated April 8, 2013, the District Court (Philip Goglas, J.) denied the branch of defendant's motion seeking preclusion of her oral statements, but granted the branch of defendant's motion seeking dismissal of the misdemeanor information on the ground that her statutory right to a speedy trial had been violated. The court found that "the People are chargeable for the time from the filing of the initial complaint on February 8, 2011 ... through dismissal and the filing of the second misdemeanor information on October 12, [sic] 2011 .... This is well beyond the 90 days upon which the People may prosecute the charge."
In May 2013, the People moved for leave to reargue so much of the April 8, 2013 order as dismissed the misdemeanor information. Defendant opposed the motion and cross-moved for an order "holding that a Kendzia Notice not served upon the attorney for defendant has no effect and does not fulfil [sic] the People's duty to answer ready for trial." By order dated August 1, 2014, following a hearing, the District Court (Richard T. Dunne, J.) granted the People's motion for leave to reargue and, upon reargument, in effect, vacated so much of the April 8, 2013 determination as had granted the branch of defendant's motion seeking to dismiss the misdemeanor information and thereupon denied that branch of her motion, and implicitly denied defendant's cross motion. The court found that a total of 37 days of delay were chargeable to the People ("7 days from April 26, 2011 to May 6, 2011 and 30 days from September 12, 2011 to October 12, 2011"). Following a jury trial, defendant was convicted of the charge and was sentenced to three years' probation.
On appeal, defendant contends that her statutory right to a speedy trial was violated because the People's statement of readiness was illusory as the misdemeanor complaint was facially insufficient and, in any event, more than 90 days of delay were chargeable to the People.
A violation of Agriculture and Markets Law § 353 is a class A misdemeanor and, thus, the People were required to announce their readiness for trial within 90 days of the commencement of the action ( CPL 30.30 [1 ] [b] ), which, here, for purposes of speedy trial calculation, was on February 8, 2011, the date when defendant first appeared in court on the desk appearance ticket (see CPL 30.30 [5 ] [b] ) and was arraigned on the misdemeanor complaint. Once an action has been commenced, it "includes the filing of all further accusatory instruments directly derived from the initial one" ( CPL 1.20 [16 ] [b]; see also People v. Osgood , 52 NY2d 37 [1980] ; People v. Lomax , 50 NY2d 351, 358 [1980] ), and it is of no consequence that a prior accusatory instrument was dismissed as jurisdictionally defective (see People v. Clayton , 39 AD3d 873 [2007] ). Moreover, even though the People cannot properly announce their readiness on a defective accusatory instrument, time periods which would be excludable pursuant to CPL 30.30 (4) remain excludable when calculating speedy trial time (see People v. Meierdiercks , 68 NY2d 613 [1986] ; People v. Worley , 66 NY2d 523 [1985] ).
Defendant argues that all of the time from February 8, 2011 (her arraignment on the misdemeanor complaint) to December 1, 2011 (her arraignment on the misdemeanor information) is chargeable to the People because the statement of readiness the People filed in October 2011 was improper as the People had failed to send the statement to her attorney. In any event, defendant contends that from the time of her arraignment on the misdemeanor complaint on February 8th (when the defense submitted discovery demands) to May 6, 2011 (when the People responded to the demands) all but 15 days are chargeable to the People.
At the outset, we note that, while defendant also argues that the time from April 8, 2013 to May 3, 2013 is chargeable to the People, the People's May 2013 motion for leave to reargue was limited to the time period addressed in defendant's April 2012 motion which, the court noted at the speedy trial hearing, concerned the time period from December 7, 2010 to March 6, 2012. Consequently, this issue is unpreserved for appellate review (see People v. Beasley , 16 NY3d 289, 292–293 [2011] ), and it will not be considered by this court in the interest of justice. In addition, since defendant raises no issue on appeal regarding whether the time period from December 1, 2011 (the date defendant was arraigned on the misdemeanor information) to March 6, 2012 (the date when defense counsel asked for an adjournment so that he could submit a motion) should be charged to the People, this issue is deemed abandoned (see People v. Witkop, 114 AD3d 1242, 1243–1244 [2014] ).
As previously stated, the instant case was commenced, for purposes of speedy trial calculation, on February 8, 2011 (see CPL 30.30 [5 ] [b] ) and, therefore, the time period from December 7, 2010 to February 8, 2011 falls outside of this period (see People v. Smietana , 98 NY2d 336, 340 [2002] ; People v. Currid , 40 Misc 3d 142[A], 2013 NY Slip Op 51510[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2013] ). The time period from February 8th to March 22, 2011 is excludable pursuant to CPL 30.30 (4) (a) as a reasonable period of delay resulting from proceedings concerning defendant (see People v. Dorilas , 19 Misc 3d 75, 76 [App Term, 2d Dept, 2d & 11th Jud Dists 2008] ). The time period from March 22nd to April 26, 2011 is excludable pursuant to CPL 30.30 (4) (b) because, on March 22nd, defense counsel requested an adjournment to April 26th. On April 26th, the People requested an adjournment to May 3, 2011, and defense counsel asked that the case be adjourned to May 6th instead. Therefore, the adjournment from May 3rd to May 6th is excludable pursuant to CPL 30.30 (4) (b) as a defense request, and the People are only charged with the seven days they requested (see People v. Brown , 28 NY3d 392, 404 [2016] ; People v. Boumoussa , 104 AD3d 863, 863 [2013] ). No days of delay are chargeable to the People for the time period from May 6, 2011 to June 14, 2011, as that period is excludable as an adjournment requested by the defense (see CPL 30.30 [4 ] [b] ), and also as an adjournment attendant to motion practice (see CPL 30.30 [4 ] [a] ). The People are also not charged with the time period from June 14, 2011 to September 12, 2011, which time is excludable pursuant to CPL 30.30 (4) (a) as an adjournment attendant to motion practice. From September 12, 2011 to October 12, 2011, 30 days of delay are chargeable to the People since, after the misdemeanor complaint had been dismissed on September 12th, the People filed a misdemeanor information on October 3, 2011 and did not file their off-calendar statement of readiness until October 12th.
With respect to the time period from October 12, 2011 to December 1, 2011, we note that, since a bench warrant was issued for defendant's arrest on November 22, 2011, the time from November 22nd to December 1st is excludable pursuant to CPL 30.30 (4) (c). In view of the foregoing, we need not determine whether the People should be charged with the 41 days from October 12, 2011 to November 22, 2011 since, even if these days are chargeable to the People, the total chargeable time would amount to less than 90 days.
Consequently, the District Court, upon reargument, properly denied the branch of defendant's motion seeking to dismiss the misdemeanor information on the ground that her statutory right to a speedy trial had been violated.
Defendant further contends that evidence of her oral statements should have been precluded because the CPL 710.30 notice was untimely and improper. It is well settled that, after a defendant has been arraigned on a second accusatory instrument, the People can file a new CPL 710.30 notice within the requisite 15–day time period (see CPL 710.30 [2 ]; People v. May , 138 AD3d 1024 [2016] ; People v. Roberts , 110 AD3d 1466, 1467–1468 [2013] ; People v. Littlejohn , 184 AD2d 790, 791 [1992] ).
The record is not clear as to whether the People timely mailed the CPL 710.30 notice to defendant's attorney on February 16, 2011—which would have been within 15 days of defendant's arraignment on the misdemeanor complaint on February 8, 2011—or whether the People failed to provide defendant with that notice until May 6, 2011, when they submitted their response to defendant's discovery demands. In any event, the misdemeanor complaint was subsequently dismissed as facially insufficient because the veterinarian had failed to submit an affidavit to convert the complaint to an information. Thereafter, the People filed a misdemeanor information, charging defendant with the same crime, which information was supported by a veterinarian's affidavit to cure the prior defect. Defendant was arraigned on the information on December 1, 2011, at which time the People timely filed a new CPL 710.30 notice (see People v. May , 138 AD3d 1024 ). Consequently, the filing of the misdemeanor information was not pretextual to enable the People to circumvent the provisions of CPL 710.30 (see e.g. People v. Capolongo , 85 NY2d 151, 165 [1995] ; People v. Etkin , 50 Misc 3d 1216[A], 2016 NY Slip Op 50115[U], *4 [Crim Ct, Kings County 2016]; People v. Porter , 33 Misc 3d 791 [Geneva City Ct, Ontario County 2011] ; People v. Iavarone , 12 Misc 3d 1158[A], 2006 NY Slip Op 50948[U] [Crim Ct, NY County 2006] ). The District Court, therefore, properly declined to preclude evidence of defendant's oral statements.
Accordingly, the judgment of conviction is affirmed.
MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.