Opinion
No. 2013BX029823.
06-20-2014
The PEOPLE of the State of New York, Plaintiff, v. Awilda McCOY, Defendant.
Molly Schindler, Esq., The Bronx Defenders, Bronx, Defense Counsel. Amy J. Omens, Esq., Assistant District Attorney, Domestic Violence Bureau, Bronx County District Attorney Office, Bronx, for the People.
Molly Schindler, Esq., The Bronx Defenders, Bronx, Defense Counsel.
Amy J. Omens, Esq., Assistant District Attorney, Domestic Violence Bureau, Bronx County District Attorney Office, Bronx, for the People.
Opinion
JEANETTE RODRIGUEZ–MORICK, J.
Defendant Awilda McCoy (“Defendant”), who is charged with Criminal Contempt in the Second Degree, Penal Law § 215.50(3), and Criminal Mischief in the Fourth Degree, Penal Law § 145.00(1), moves to dismiss the charges brought against her on speedy-trial grounds, pursuant to C.P.L. §§ 170.30(1)(e) and 30.30(1)(b) .
The Decision and Order serves to memorialize the court's June 10, 2014 oral ruling granting the instant motion.
For the reasons that follow, Defendant's motion to dismiss is GRANTED.
In deciding this motion, the court has considered Defendant's motion, dated April 7, 2014, including the affirmation of Molly Schindler, Esq., (“Schindler Aff.”) and memorandum of lase(“Mem. of Law”); the People's opposition papers, dated May 2, 2014 (“Aff. in Opp'n”); defense counsel's reply, dated May 13, 2014, including the memorandum of law (“Reply Mem. of Law”); and the court's records.
Section 30.30(1)(b) of the Criminal Procedure Law requires that the People be ready for trial within 90 days of the commencement of a criminal action in which the top charge is a class A misdemeanor. A defendant is otherwise entitled to dismissal. See C.P.L. §§ 170.30(1)(e) ; 30.30(1)(b). “Ready for trial” means that the People (1) have communicated readiness to the court and the defendant; and (2) are “in fact ready to proceed” to trial. People v. Kendzia, 64 N.Y.2d 331, 336–37, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985). The People are “ready to proceed” to trial when they have removed all legal impediments to the commencement of their case. People v. England, 84 N.Y.2d 1, 5, 613 N.Y.S.2d 854, 636 N.E.2d 1387 (1994). “The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness.” Kendzia, 64 N.Y.2d at 337, 486 N.Y.S.2d 888, 476 N.E.2d 287.
Accordingly, the court makes the following rulings concerning the relevant adjournment periods:
May 22, 2013–July 18, 2013: 0 Days
On May 22, 2013, Defendant was arraigned, the People stated ready (the “Initial Statement of Readiness”), and the case was adjourned to July 18, 2013, for response and decision regarding Defendant's omnibus motion.
Zero days are chargeable from this time period, not because the People answered ready (see infra, concerning the January 7, 2014–February 19, 2014 adjournment period, where this court holds the Initial Statement of Readiness invalid), but because adjournments for motion practice are excludable. See C.P.L. § 30.30(4)(a).
July 18, 2013–October 3, 2013: 0 Days
On July 18, 2013, the Hon. Shawn Kelly resolved Defendant's omnibus motion, granted hearings, and adjourned the case to October 3, 2013, for hearing and trial.
Zero days are chargeable from this time period. See id.; People v. Cain, 291 A.D.2d 326, 327, 737 N.Y.S.2d 852 (1st Dep't 2002) (excluding adjournments caused by “the People's need for a reasonable time to prepare for trial after the rendering of decisions on motions” under C.P.L. § 30.30(4)(a) ).
October 3, 2013–November 13, 2013; November 13, 2013–January 7, 2014: 96 Days
On October 3, 2013, the People stated not ready and requested a two-week adjournment for purposes of reassigning this case to a different Assistant District Attorney. The case was adjourned to November 13, 2013, for hearing and trial. On November 13, 2013, the People stated ready (the “Second SOR”), and the case was adjourned to January 7, 2014, for hearing and trial.
Generally, in the post-readiness context, “when the People request a particular adjourned date, but the earliest date open to the court is some time thereafter, ... the People are chargeable with only the actual period they requested.” People v. Urraea, 214 A.D.2d 378, 378, 625 N.Y.S.2d 163 (1st Dep't 1995). But here, the People's Initial Statement of Readiness, their Second SOR, and their later “post-readiness” requests for specific periods of time (made on October 3, 2014, and on January 7, 2014, see infra ) must be analyzed in the context of the on-the-record representations made by the People on later court dates (made on January 7, 2014, see infra ). See People v. Sibblies, 22 N.Y.3d 1174, 1179–81, 985 N.Y.S.2d 474 (2014) (Graffeo, J., concurring) (holding statement of readiness invalid in light of People's subsequent statement of unreadiness based on the need to obtain medical records). Because this court finds the government's Initial Statement of Readiness invalid (see infra, concerning the January 7, 2014–February 19, 2014 adjournment period), the People are charged with this entire adjournment period consisting of ninety-six days. See Sibblies, 22 N.Y.3d at 1179–81, 985 N.Y.S.2d 474 (citing People v. Bonilla, 94 A.D.3d 633, 633, 942 N.Y.S.2d 509 (1st Dep't 2012) (“[The People's] initial statement of readiness proved to be illusory ... [because their subsequent] requests for adjournments, asserting a need for further investigation, effectively conceded that the prior statement of readiness was inaccurate.”)).
Although Sibblies lacks a readily apparent ratio decideni, this court adopts the reasoning of People v. McLeod , 44 Misc.3d 505, 509 (N.Y. Co. Crim. Ct.2014), in which the Hon. Steven M. Statsinger teased out the case's implications: “When a fragmented Court decides a case and there is no single rationale explaining the outcome that has the assent of at least five justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgements on the narrowest grounds.” (quoting Marks v. United States , 430 U.S. 189, 193) (internal quotation marks omitted). “Applying the Marks test to Sibblies , [Judge Statsinger] has identified the approach taken in [the Hon. Victoria A.] Graffeo's opinion as the ‘narrower’ ground.” Barry Kamins, Ready or Not: Court of Appeals Revisits Speedy Trial Rule, 251 N.Y.L.J. p 3, col. 1 (2014).
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January 7, 2014–February 19, 2014: 43 Days
On January 7, 2014, the People stated not ready and requested a two-week adjournment because they were “still waiting for the minutes from family court.” (Schindler Aff., Ex. A, Tr. 2:18–20.) When asked by the court whether the People “need[ed] those minutes in order to proceed” to trial, the reply was an unequivocal: “[y]es, your Honor.” (Id. ) The court adjourned the case to February 19, 2014, for hearing and trial. (Id. ) Given “the prosecutor['s] admi [ssion] that the People were not in fact ready to proceed because they” were awaiting family court minutes (the “Family Court Minutes”), “the [Initial Statement of Readiness] did not accurately reflect the People's position.” See Sibblies, 22 N.Y.3d at 1181, 985 N.Y.S.2d 474 ; see also Bonilla, 94 A.D.3d at 633, 942 N.Y.S.2d 509.
Arguing against a finding abrogating their Initial Statement of Readiness, the People now contend, in their responsive motion papers, that the Family Court Minutes are and were superfluous. This argument is based on the availability of the complaining witness on January 7, 2014, whose alleged testimony would have established Defendant's knowledge of the order of protection, the only evidentiary point for which the Family Court Minutes were purportedly needed.
A very similar scenario, however, confronted the courts in People v. Sibblies, 98 A.D.3d 458, 459–60, 949 N.Y.S.2d 685 (1st Dep't 2012), and Sibblies, 22 N.Y.3d 1174, 985 N.Y.S.2d 474. There, after filing and serving an off-calendar statement of readiness, the People subsequently stated not ready in open court for the reason that they were “awaiting medical records.” 98 A.D.3d at 459–60, 949 N.Y.S.2d 685. Seeking to avoid that court's invalidation of their off-calendar statement of readiness, the People argued that “because they could have proceeded to trial without the medical records, the [off-calendar] statement of readiness filed with the court [ ] was made in good faith and was not [ ] illusory.” Id. The First Department agreed, reasoning that “the People were ready for trial [ ] because they could have made out a prima facie case ... [without] the medical records.” 22 NY3d at 1180, 98 AD3d at 460. Reversing the First Department, the Court of Appeals rejected the People's contention that they “could have proceeded to trial without the medical records” given the prosecutor's on-the-record “admi[ssion] that the People were not in fact ready to proceed [on March 28, 2007].” 22 N.Y.3d at 1181, 985 N.Y.S.2d 474.
As in Sibblies, the People's argument that they could have proceeded without the asserted materials (here, the Family Court Minutes) is flatly contradicted by the People's on-the-record assertion in open court on January 7, 2014, that those materials were indispensable. Since the transcribed minutes directly contradict the People's present arguments, the record does not support their contention that they were ready to proceed to trial on or before January 7, 2014. See id.; see also People v. Salgado, 27 A.D.3d 71, 75, 808 N.Y.S.2d 54 (1st Dep't 2006) (crediting “transcribed minutes for [a] court appearance” despite contradictory arguments in the People's “underlying motion papers”).
The entire period from October 3, 2013, to January 7, 2014, must therefore be charged to the People.
The January 9, 2014 Statement of Readiness
On January 9, 2014, two days after their January 7, 2014 request for a two-week adjournment, the People filed and served a statement of readiness without explanation (the “Third SOR”). The validity of that SOR is called into question for two reasons: (1) rather than provide, by affirmation, an explanation as to why, forty-eight hours after requesting a two-week adjournment, the People suddenly became ready for trial, the People stated nothing; and (2) in their opposition papers, the People apparently concede that the Third SOR was ineffective to stop the clock from running. (See Aff. in Opp'n (charging 14 days from this adjournment period and not addressing the Third SOR).) The validity of the January 9, 2014 SOR is therefore unsupported by the record. See Salgado, 27 A.D.3d at 75, 808 N.Y.S.2d 54 (noting that where an SOR is no longer presumed valid, “[t]he burden rests on [the People] to clarify [ ] the record” as to their ability to proceed to trial); People v. Betancourt, 217 A.D.2d 462, 465, 629 N.Y.S.2d 423 (1st Dep't 1995) (“[C]ontinuing readiness should not be presumed. The People were not ready at the preceding calendar call and had done nothing to demonstrate that they were, in fact, ready to proceed....”).
The 96 days chargeable from October 3, 2013, to January 7, 2014, together with the 43 days chargeable from January 7, 2014, to February 19, 2014, amount to 139 days, far exceeding the 90–day time limit.
February 19, 2014–March 25, 2014: 0 Days
On February 19, 2014, the People stated ready, defense counsel stated not ready, and the case was adjourned to March 25, 2014, for hearing and trial.
Zero days are chargeable from this time period. See People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 (1992).
March 25, 2014–May 5, 2014: 6 Days
On March 25, 2014, the People stated not ready because a witness was sick. The People requested that the case be adjourned to March 31, 2014, and the court adjourned the case to May 5, 2014, for hearing and trial.
Six days are chargeable from this time period. See id.; Urraea, 214 A.D.2d at 378.
May 5, 2014–June 20, 2014: 0 Days
On May 5, 2014, the court adjourned the case to June 20, 2014, for purposes of deciding the instant motion.
Zero days are chargeable from this time period. See C.P.L. § 30.30(4)(a).
Total Days Chargeable to the People: 145 Days
Accordingly, because the People have exhausted the 90 days to prepare for trial afforded by C.P.L. § 30.30(1)(b), Defendant's motion is granted.
The Criminal Mischief Charge
Concerning the criminal mischief charge, the People alternatively argue that their need for Family Court Minutes adversely affected, at most, only the charge of criminal contempt and not the charge of criminal mischief, on which the People now indicate that they were otherwise ready to proceed. (Aff. in Opp'n 7–8.) But the January 7, 2014 minutes reflect that the People failed to distinguish between the two pending charges when they indicated, in open court, that they were not ready to proceed to trial. The January 7, 2014 “interchange clearly establishes that the People were not ready to proceed on [that date], and would not be ready until [they received the family court minutes].” See Salgado, 27 A.D.3d at 75, 808 N.Y.S.2d 54. The People could have stated ready on the criminal mischief charge and not ready on the criminal contempt charge, see People v. Brooks, 190 Misc.2d 247, 249, 736 N.Y.S.2d 823 (App. Term, 1st Dep't 2001), but they failed to do so. Therefore, for reasons already discussed (see supra, concerning the January 7, 2014–February 19, 2014 adjournment period), this charge is also dismissed.
This constitutes the Decision and Order of the Court.
SO ORDERED.