Opinion
No. 2014QN045984.
03-10-2017
The PEOPLE of the State of New York, Plaintiff, v. Victor MANGUAL, Defendant.
Queens County District Attorney's Office by ADA Katherine McCabe, Esq., for the People. Legal Aid Society by Ariel Schneller, Esq., for the defendant.
Queens County District Attorney's Office by ADA Katherine McCabe, Esq., for the People.
Legal Aid Society by Ariel Schneller, Esq., for the defendant.
ALTHEA E. DRYSDALE, J.
The defendant, Victor Mangual, moves to dismiss the criminal action on the ground that he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law (CPL) §§ 170.30(1)(e), and 30.30(1)(b).
The defendant, Victor Mangual, is charged with the unclassified misdemeanor of driving while intoxicated (VTL § 1192[3] ). A violation of VTL § 1192[3]"shall be a misdemeanor and shall be punishable by a fine of not less than five hundred dollars nor more than one thousand dollars, or by imprisonment in a penitentiary or county jail for not more than one year, or by both such fine and imprisonment" (VTL § 1193 ). Accordingly, the People have 90 days to announce readiness on the accusatory instrument (CPL 30.30[1][b] ).
A criminal action is commenced by the filing of an accusatory instrument (Criminal Procedure Law § 1.20[17] ; People v. Lomax, 50 N.Y.2d 351 [1980] ). Except for periods of excludable delay (see Criminal Procedure Law § 30.30[4] ), the proscribed period continues to run until the People state their present readiness for trial (People v. Kendzia, 64 N.Y.2d 331 [1985] ). The People communicate their readiness for trial by either stating that they are ready for trial in open court, or by serving and filing a certificate of readiness to, both, defense counsel and the court clerk (People v. Sibblies, 22 NY3d 1174, 1180 [2014] ; People v. Kendzia, 64 N.Y.2d 331, 337 [1985] ). And, the People must actually be ready to proceed to trial at the time they state their readiness for trial (People v. Sibblies, 22 NY3d 1174, 1180 [2014] ; People v. Chavis, 91 N.Y.2d 500, 505 [1998] ).
The defendant has the initial burden of showing the existence of unexcused delay greater than the time allowed by Criminal Procedure Law § 30.30(1) ( People v. Brown, 28 NY3d 392 [2016], and People v. Barden, 27 NY3d 550 [2016] ). Once the defendant meets his burden, the burden then shifts to the People to show that they are entitled to exclude certain adjournments as prescribed by Criminal Procedure Law § 30.30(4) (see People v. Robinson, 67 AD3d 1042 [3d Dept 2009] ). Further, it is the People's burden to make sure the record is sufficiently clear as to who is chargeable for an adjournment (id. at 1044 ; see also Brown, supra ).
Based on the parties' motion, and my review of the record, the defendant's motion is granted.
The action commenced on August 9, 2014. The criminal complaint was deemed a misdemeanor information. Thereafter, the defendant requested a motion schedule to serve and file an omnibus motion. The defendant was ordered to serve and file his motion by August 22, 2014. The case was adjourned to September 12, 2014 for the People to serve and file their opposition to the defendant's motion, as the People concede. As such, 0 days are included (CPL § 30.30[4] [a] [time for pretrial motions excludable] ).
On September 12, 2014, the People did not serve and file their opposition to the defendant's motion because, as they claim, they never received the defendant's omnibus motion. The defendant provided the People with a courtesy copy in court and, the court ordered the People to serve and file their response by October 3, 2014. The case was adjourned to November 5, 2014 for the court's decision.
The People missed the October 3, 2014 deadline as well. Thus, the defendant now argues that the People should be charged the entire time period from September 12, 2014 until the day they served and filed their response on November 5, 2014.
CPL § 30.30[4][a] explicitly provides that the time for pretrial motions is excludable. And, it is well settled that the People are to be afforded a reasonable time to respond to the defendant's motion (see People v. Torres, 60 N.Y.2d 119, 127 [1983], and People v. Gonzalez, 266 A.D.2d 562 [2d Dept 1999], app den 94 N.Y.2d 920 [2000] ). But, where the People are tardy with their response in excess of the court's mandate, it directly impacts the case from proceeding further. The reason proffered by the People for their delay in response to the defendant's omnibus motion is insufficient. Especially, in light of the fact that the defendant has produced a time stamped copy of his motion delivered to the District Attorney's office on August 20, 2014, two days before the court ordered date of August 22, 2014. In any event, the People were afforded a new date to file their opposition to the defendant's motion, which was October 3, 2014. And, yet, the People still missed this deadline and did not serve and file their response to the defendant's motion until the next court date, which was November 5, 2014. As such, 33 days are included (see People v. Delosanto, 307 A.D.2d 298, 299 [2d Dept 2002] [when the court imposes a deadline for the People to file their response to the defendant's motion, and they miss the deadline, the time period from the deadline until the actual filing of a response is chargeable], app den 100 N.Y.2d 641 [2003] ).
On November 5, 2014, the People served and filed their response to the defendant's motion, and the court rendered its decision the same day. The case was adjourned to December 4, 2014 for hearings. The defendant does not contend that this adjournment period is chargeable to the People (see People v. Beasley, 16 NY3d 289, 293 [2011] [defendant's duty on a speedy-trial motion is to draw the court's attention to specific periods chargeable to the People] ). 0 days are included.
On December 4, 2014, the People were not ready for trial and requested an adjournment to December 8, 2014. The case was adjourned to February 9, 2015 for hearings. 4 days are included (People v. Betancourt, 217 A.D.2d 462, 464 [1st Dept 1995] [People charged only with time they request in the post-readiness context] ).
On February 9, 2015, both parties were ready for trial. But, there were no parts available to conduct the hearing. The case was adjourned to March 24, 2015 for hearings. 0 days are included.
On March 24, 2015, the People were not ready for trial, and requested an adjournment to March 31, 2015. The case was adjourned to April 13, 2015 for hearings. 7 days are included (People v. Betancourt, 217 A.D.2d 462, 464 [1st Dept 1995] [People charged only with time they request in the post-readiness context] ).
On April 13, 2015, the People were ready for trial, but defense counsel was engaged on another matter. The case was adjourned to May 27, 2015 for hearings. 0 days are included.
The adjournment periods from May 27, 2015 to June 29, 2015, and June 29, 2015 to September 9, 2015 are excludable, as the People were ready for trial, but defense counsel was not ready to proceed to trial. 0 days are included.
On September 9, 2015, the People were ready for trial. The hearing was held, and the case was adjourned to October 28, 2015 for the court's decision. 0 days are included (CPL § 30.30[4][a] [time for pretrial motions excludable] ).
On October 28, 2015, the court adjourned the case to December 17, 2015 for the court to render its decision on the suppression hearing. 0 days are included (id. ).
On December 17, 2015, the court rendered its decision and denied the defendant's motion to suppress. The case was adjourned to April 25, 2016 for jury trial. The defendant does not contend that this adjournment period is chargeable to the People (see People v. Beasley, 16 NY3d 289, 293 [2011] [defendant's duty on a speedy-trial motion is to draw the court's attention to specific periods chargeable to the People] ). 0 days are included.
On April 25, 2016, the defendant served and filed a motion to reargue his motion to suppress. The case was adjourned to July 11, 2016 for decision. 0 days are included (CPL § 30.30[4][a] [time for pretrial motions excludable] ).
On July 11, 2016, the case was adjourned to October 5, 2016 for jury trial. The defendant does not contend that this adjournment period is chargeable to the People (see People v. Beasley, 16 NY3d 289, 293 [2011] [defendant's duty on a speedy-trial motion is to draw the court's attention to specific periods chargeable to the People] ). 0 days are included.
On October 5, 2016, the case was adjourned to November 7, 2016 for jury trial. The defendant does not contend that this adjournment period is chargeable to the People (id. ). 0 days are included.
On November 7, 2016, the People were not ready for trial. The court noted that the People did not place a reason on the record for their present unreadiness. The case was adjourned to January 24, 2017 for jury trial. The People served and filed an intervening statement of readiness, three days later, on November 10, 2016.
The defendant argues that the People should be charged with the entire period from November 7, 2016 until January 24, 2017 because their off-calendar statement of readiness was illusory.
Recently, the Court of Appeals rendered a decision in People v. Brown, 28 NY3d 392 (2016), which reaffirmed Judge Graffeo's concurrence in People v. Sibblies, 22 NY3d 1174 (2014). Specifically, the People's "off-calendar statement of readiness is presumed to be truthful and accurate[,] and that the defendant who challenges such a statement must demonstrate that it is illusory" (Brown, supra at 405). Brown further held that when challenged, the People are obligated in the post-readiness context to ensure "that the record explains the cause of adjournments sufficiently for the court to determine which party should properly be charged with any delay" (id. at 406, quoting People v. Stirrup, 91 N.Y.2d 434, 440 [1998] ). The People could place the reason on the record at a calendar call, but if not, then they "must establish a valid reason for their unreadiness in response to [the] defendant's CPL 30.30 motion" (Brown, supra at 406).
To the extent that the Court of Appeals remitted People v. Brown back to the trial court for a 30.30 hearing, such measure is not required here. The defendant in Brown challenged the People's statement of readiness as illusory after the People served and filed their opposition to the defendant's motion to dismiss on speedy trial grounds. And, the record was insufficient to determine whether the statement of readiness was illusory.
Here, the defendant challenged the People's statement of readiness as illusory, and in their opposition, the People have failed to provide a valid reason for their unreadiness. As such, 78 days are included.
On January 24, 2017, again, the People were not ready for trial, and requested an adjournment date of February 16, 2017. The case adjourned to March 2, 2017 for jury trial. 23 days are included (People v. Betancourt, 217 A.D.2d 462, 464 [1st Dept 1995] [People charged only with time they request in the post-readiness context] ).
On March 2, 2017, the defendant served and filed this motion to dismiss. And, the People served and file their opposition. The case was adjourned to March 10, 2017 for decision. 0 days are included (CPL § 30.30[4][a] [time for pretrial motions excludable] ).
Based on this analysis, the total chargeable time is 145 days. Because this exceeds the 90–day allotment (see CPL 30.30[1][b] ), the defendant's motion to dismiss the accusatory instrument is granted.
The foregoing constitutes the decision and order of the Court.