Opinion
BC0618936.
Decided June 3, 2011.
Michelle S. Prior, Village Prosecutor, Great Neck, NY.
Michael L. Fishman, Defendants Attorney, Mineola, NY.
This matter comes before the Court by Motion of Defendant for an Order to dismiss the above Simplified Traffic Information pursuant to CPL. Section 170.30 (1)(e) and CPL. Section 30.30 for defendant having been denied the right to a speedy trial. The defendant was issued a Simplified Traffic Information No. BC0618936 on May 11, 2010 (hereinafter referred to as the "Ticket") and was charged with a violation of NYS Vehicle and Traffic Law ("VTL") Section 511 (1)-a 3rd degree: Operation while license or privilege is suspended or revoked; aggravated unlicensed operation. This offense is a misdemeanor (unclassified).
The defendant was arraigned on July 7, 2010, entering a plea of "not guilty". On August 12, 2010, the defendant appeared with counsel in the Kings Point Village Justice Court, at which time the case was scheduled for a conference. Counsel for defendant demanded a trial, however, the Court ordered the defendant, over counsel to defendant's objection, to submit a motion to County Court to request a removal to District Court where a misdemeanor trial with the possibility of a jury empanelment could occur, if so demanded. The defendant made the motion as directed and the motion was denied by the County Court on October 14, 2010. The Kings Point Village Justice Court received notice of the decision from counsel for the defendant by letter dated October 19, 2010 with a copy indicated on his letter to the Village Prosecutor. Counsel's forwarding letter of October 19, 2010 requested that the matter again be rescheduled and requested that the Court "advise my office of the new court date". Counsel's letter also indicated that he would not be available between the dates of November 24, 2010 and December 14, 2010 as he was going out of the country on vacation between those two dates. Paragraph 11 of Counsel's affirmation in support of defendant's motion indicates that his October 19, 2010 letter indicated that Defendant would be ready to proceed to trial on January 17, 2011, the third Monday in January, 2011 when he presumably thought the Court would be in session. However, the October 19th letter does not state those facts, and in fact was silent as to any particular time for trial, nor did it request a trial date in January, 2011. By letter dated April 4, 2011, the Court noticed the parties by scheduling the matter for trial on May 16, 2011. Thereafter, by letter dated April 11, 2011, counsel for defendant requested another adjournment of the scheduled trial date of May 16, 2011 stating that the defendant had a previously scheduled trip to Nevada, the date the matter was scheduled for trial. Counsel's letter also requested that any adjourned date not conflict with counsel's travel plans which were specifically set forth in the letter and specified to be on June 20-June 23rd, 2011 and on August 17 through August 22nd, 2011. Thereafter, on April 29, 2011, counsel for defendant filed the instant Motion with the Court requesting a dismissal of the information against defendant pursuant to CPL. Section 170.30 (1)(e) and CPL. Section 30.30, which alleged that more than sixty days period of time is chargeable to the prosecution without the defendant having been "brought to trial", thereby violating the defendant's right to a speedy trial. It should be noted that CPL Section 30.30 (1) does not require that defendant be "brought to trial" but only requires that a dismissal "must be granted where the people are not ready for trial ".
The question presented for decision by the Court, is whether the People were ready for trial within the statutory time frame of CPL Section 30.30 (1) and the requirements there-under, and, if not, were there any excusable delays to the statutory time frame permitted under CPL Section 30.30 (4) that would have extended the time under which the People had to be ready for trial.
For the reasons stated below, the defendant's Motion is granted, and this case is dismissed.
The Ticket was issued charging a misdemeanor under VTL Section 511 (1)-a 3rd degree, and the penalty under that section of the VTL if the defendant were found guilty of this charge, carries a maximum term of imprisonment of 30 days. With regard to the speedy trial rules, CPL Section 30.30 (1) (c) is dispositive, and requires that the People be ready for trial within "(c) sixty days of the commencement of a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of not more than three months " A motion made pursuant to paragraph (e) of subdivision one of section 170.30 of the CPL must be granted where the people are not ready for trial within such time period. Accordingly, in the instant matter, the People must be ready for trial within sixty days of the commencement of the criminal action, which is customarily measured from the date of the Defendant's arraignment unless there are time periods that are properly excludable under the various circumstances permitted and set forth in CPL Section 30.30 (4).
CPL Section 30.30 (4) provides clarification concerning the computation of the time within which the People must be ready for trial pursuant to CPL 30.30 subdivision one and describes those instances where certain time periods must be excluded from the computation of time in which the People must be ready for trial. CPL 30.30 (4) (a) provides in substance that "a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: pre-trial motions and the period during which such matters are under consideration by the court; ". In addition, CPL 30.30 (4) (b) provides that "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 counsel" must be excluded from the computation of time in which the People must be ready for trial.
Defendant's Counsel, in his Affirmation dated April 19, 2011 states in Paragraph 7 that "Counsel has never received a Statement of Readiness from the Prosecution".The People's Affirmation in Opposition, in Paragraph 8 states that "The People were ready for trial on the December court dates of December 9 and December 14 (2010) but the defendant requested that the case not be scheduled on those court dates. The People's affirmation further states that since the defendant had adjourned the case, the People never had the opportunity to state "Ready" in open court, but the witness was available and the case could have proceeded had the defendant been available "
There is no discussion by the People in their Affirmation in Opposition that they ever stated that the People were "Ready" for trial, or that a Statement of Readiness was ever filed with the Court or the defendant. The Court has reviewed the transcript of the conference held on August 12, 2010, and the record does not contain any statement by the Prosecutor that indicated that the People were "Ready" for trial. In addition, there is no written notification in the Court's file on this matter from the People that indicates that the People were ready for trial.
In order to toll the running of time under CPL Section 30.30 (1), the People must announce their present readiness for trial. To be "ready for trial" within the meaning of the speedy trial statute, the People must in fact be ready to proceed and must communicate their readiness on the record. People v. Lucero, 2008, 21 Misc.3rd 412, 863 N.Y.S. 2d 881. For speedy trial purposes, "ready for trial" encompasses two elements: (1) a statement of readiness by the prosecution made in open court and transcribed by a court reporter or recorded by the clerk, or a written notice of readiness sent by the prosecution to both defense counsel and the appropriate court clerk; and (2) the People must in fact be ready to proceed at the time they declare readiness. People v. Rodriquez, 2008, 856 N.Y.S.2d 476; People v. Chavis, 1998, 91 NY2d 500, 673 N.Y.S.2d 29, 695 N.E.2d 1110. Where readiness is announced in court but defense counsel is not present, the prosecutor must communicate readiness to counsel by promptly notifying defense counsel of the People's statement of readiness People v. Kendzia, 64 NY2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985). In fact, the People may effectively state their readiness for trial for purposes of the speedy trial statute outside the presence of defendant or defense counsel, and when the case is not on the court's calendar. People v. Blancero, 2001, 187 Misc 2d 832, 725 N.Y.S.2d 816, affirmed 289 AD2d 501, 736 N.Y.S.2d 50. A written statement of readiness for trial mailed to defense counsel and directly to the court also satisfies the objectives underlying the requirement of informing the defense that the People are ready to proceed and objectively establishes the date on which readiness occurred. People v. Jones, 1998, 175 Misc 2d 828, 670 N.Y.S.2d 712
Decisions point to the conclusion that the People have an obligation to announce readiness within the statutorily prescribed time period irrespective of court granted adjournments, unless the People can establish an excludable period on the basis of a record made at the time of adjournment, or the record clearly reflects a defense request for adjournment. See e.g., People v. Cortes, 82 NY2d 201, 590 N.Y.S2d 9, 604 N.E.2d 71 (1992); People v. Smith, 82 NY2d 676, 601 N.Y.S.2d 466, 619 N.E.2d 403 (1993). This applies even if the court adjourns the matter sua sponte. People v. Jamison, 87 NY2d 1048, 643 N.Y.S.2d 479, 666 N.E.2d 184 (1996), or for scheduling convenience. People v. Collins, 82 NY2d 177, 604 N.Y.S 2d 11, 624 N.E.2d 139 (1993).
Any exclusion of time to toll the readiness period, for the purposes of this case, must be based upon a circumstance specified in subdivision 4 of CPL 30.30. Note that court congestion is not one of those circumstances and even where it is obvious that a case cannot go to trial before the readiness deadline, that fact will not excuse the People's failure to be ready for trial. People v. Brothers, 50 NY2d 413, 429 N.Y.S.2d 558, 407 N.E.2d 405 (1980).
Compliance with CPL 30.30 (1) is generally determined by computing the time elapsed between filing of the first accusatory instrument and the People's declaration of readiness, and then subtracting any periods of delay that are excludable under the statute. People v.Dearstyne (3rd Department 1996) 230 AD2d 953, 646 N.Y.S.2d 1000, appeal denied 89 NY2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 295, on reconsideration 89 NY2d 1034, 659 N.Y.S.2d 864, 681 N.E.2d 1311.
In the instant case, it appears that the People have never communicated that they were ready for trial either in open court, or by written notice. The People argue that they have never requested an adjournment on any court date or via correspondence. The People argue that the delays and rescheduling have, on every occasion, been due to the defendant's motion practice, the defendant's requests due to travel plans and scheduling by the Court. The People indicate that they were ready for trial on December 9, and December 14, 2010, although the case was not on the Court's calendar on either of said dates due to counsel for defendant's request in his letter of October 19, 2010 not to schedule the case during that time period as he was scheduled to be outside the country. In addition, the People did not announce in open court on either of those dates that they were ready for trail, which was available to them, and which would have occurred within sixty days from October 19, 2010 which was the date defendant's counsel notified the Court that the County Court had denied the defendant's motion to transfer the case to the County Court from the Kings Point Justice Court. In addition, it would have been within sixty (60) days from the date counsel for defendant wrote in his October 19, 2010 letter requesting that the Court "Kindly reschedule the matters for the Justice Court of the Incorporated Village of Kings Point and advise my office of the new court date". A copy of the October 19, 2010 letter from counsel for defendant was sent to the Village Prosecutor.
The People argue that they never had the opportunity to state "Ready" in open Court and the case could have proceeded if the defendant were present at either of the Court dates held by the Court in December, 2010. The Court does not give credence to this argument, as the People could have stated their readiness even in the absence of the defendant or their counsel being in Court, by simply stating so on the record at any time when the Court was in session (within the required time period), and then following that statement of readiness with a prompt written notice to defendant's counsel indicating that the People were ready.
The People argue that they had absolutely no input regarding the Court's scheduling of trial dates. The People argue that the court-determined calendaring and re-calendaring of particular cases is completely out of the control of the prosecution, and that it is an administrative function of the court. While this is true, CPL Section 30.30 (1) requires that the People be ready for trial within sixty days (in the instant case), and that the People give notice thereof to the defendant. CPL Section 30.30 does not require that the actual trial take place within that time frame, as the scheduling of the actual trial date is up to the Court and is out of the control of the prosecution.
As the People have not given any notice of readiness for trial in this case, the question then becomes, was there excusable time, and — or excusable circumstances that would qualify under CPL Section 30.30 (4) under which the People are entitled to subtract from the elapsed time period in determining whether they were required to have given any required notice of readiness for trial under Section 30.30 (1).
It appears from the position that counsel for defendant sets forth in both his Affirmation and his Reply Affirmation, that counsel believed that his October 19, 2010 letter, which requested that the Court reschedule the matter, (but not during the dates between November 24, 2010 and December 14, 2010), was a request for the next available date the case could be heard, which would be sometime in January, 2011 when the Court would be in session. In counsel's Affirmation he indicated that the defense was ready to proceed to trial on January 17, 2011 (but this was not stated in any communication to the court before submitting his Affirmation). In counsel's Reply Affirmation, he indicates in Paragraph 6, that his motion and supporting papers request that the time subsequent to January 17, 2011 should be charged to the Prosecution. By stating this date in both his Affirmation and Reply, counsel for defendant is, in effect, waiving any issue as to any elapsed time that occurred between the date of the arraignment, July 7, 2010 and the original conference date of August 12, 2010, and between August 12, 2010 and October 19, 2010 which time was taken up by being ordered by this Court to make a motion to transfer this case to the District Court for a possible trial with a possible jury.
For purposes of calculating the sixty (60) day time period within which the People must state that they are ready for trial, the Court has accepted the presumed waiver by counsel for defendant of the time period between July 8, 2010 and August 12, 2010 and has not charged the People with that time period. In addition, the time period between August 12, 2010 and October 19, 2010 is not chargeable to the People due to the Court's order to defendant to make a motion to transfer the case for trial in the District Court. In addition, due to the information set forth in counsel for defendant's letter dated October 19, 2010, the Court is charging the time between October 19, 2010 through January 18, 2011 to the defendant based upon defendant's purported request for an adjournment, by requesting not to have anything scheduled in December, 2010, and that it was presumably to late to schedule anything in November, 2010 based upon the late date in October when counsel's letter was sent. However, with regard to starting the sixty (60) day clock running again, the Court has calculated, and has decided to use the last date in January, 2011 that the Court was in session for conferences and trials which was on January 18, 2011. As such, and based upon the calculation of pertinent dates set forth herein, the Court believes that under the circumstances of this case, the sixty (60) day time period within which the People should have indicated that they were "ready for trial" should be deemed to have commenced, on January 19, 2011, and said sixty (60) day period would then have ended on March 19, 2011.
Notwithstanding the fact that on April 4, 2011 the Court re-scheduled the trial date for May 16, 2011, and counsel for defendant, yet again, by letter to the court dated April 11, 2011 requested an adjournment of that date, the People still had a statutory obligation to notify the defendant, pursuant to the provisions of CPL 30.30 (1) within the sixty day time period that ended, by the Court's calculations on March 19, 2011, that the People were ready for trial, as required by the statute. As such, anything concerning this case that occurred after March 19, 2011 would not be applicable other than consideration of defendant's Motion to Dismiss based upon the failure of the People to be ready for trial within the sixty day period required by CPL Section 30.30 (1). Notification by the People that they were ready for trial could have occurred anytime prior to March 19, 2011 either in open court on the record, with or without the Defendant or his counsel being present, with appropriate written notice thereafter, or merely by sending a written notice of being ready for trial to the Court and to counsel for the defendant.
Accordingly, since no notice of being ready for trial in this case was sent by the People during the time period required by CPL Section 30.30, the case against the defendant must be dismissed according to the provisions of CPL Section 30.30.
SO ORDERED