Opinion
No. 2011KN094237.
2012-08-27
The PEOPLE of the State of New York, v. Jason McGAUGHEY, Defendant The People of the State of New York, v. Timothy Barker, Defendant. The People of the State of New York, v. Gregory Allen, Defendant. The People of the State of New York, v. Alejandro Wrobel-Dimura, Defendant.
Charles J. Hynes, District Attorney, Kings County, by Seth Zuckerman, Esq., Assistant District Attorney, for People. Elizabeth Latimer, Esq., Brooklyn Defender Services, for Defendants.
Charles J. Hynes, District Attorney, Kings County, by Seth Zuckerman, Esq., Assistant District Attorney, for People. Elizabeth Latimer, Esq., Brooklyn Defender Services, for Defendants.
JOHN H. WILSON, J.
All Defendants are charged with Obstructing Governmental Administration in the Second Degree (PL Sec. 195.05), a Class A misdemeanor, and Disorderly Conduct, (PL Sec. 240.20). A violation. These matters were previously consolidated with several other matters on motion of the People, without objection from the Defendants.
By motions dated April 23, 2012, these Defendants seek dismissal of the Criminal Court Complaints against them pursuant to CPL Sec. 30.30, asserting that the People have failed to comply with the time limitations imposed upon the prosecution of Class A misdemeanors by that section.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated July 10, 2012.
Defendant's motion is denied. The Court finds that the People are charged with 73 days in this matter.
The top count of each Criminal Court Complaint herein is a Class A misdemeanor. Thus, there is no dispute that 90 days is the applicable time limit. See, CPL Sec. 30.30(1)(b); People v. Cooper, 98 N.Y.2d 541, 543, 750 N.Y.S.2d 258, 779 N.E.2d 1006 (2002) (“CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action.”).
Defendants were arrested in the instant matter on November 1, 2011, at the 73rd Precinct, Brooklyn, New York, while each was allegedly participating in a protest against the New York Police Department's “Stop and Frisk” policy. All are charged with “blocking the entrance way” of the precinct, and after being instructed to disperse, all Defendants did refuse and continue to “block the entrance way of said precinct thereby preventing any police officer and police personnel from entering and exiting the 73rd Precinct.” See, Criminal Court Complaint for each Defendant, each dated November 2, 2011.
All Defendants were given desk appearance tickets, and arraigned on December 5, 2011. On that date, the People asked that the complaint be deemed an information, and counsel for the Defendants waived discovery by stipulation. The matters were then adjourned to March 9, 2012 for trial.
Defendants assert, and the People readily admit, that the People did not state ready for trial at each Defendant's arraignment. On this basis, excluding the day of arraignment from our calculations (See, People v. Stiles, 70 N.Y.2d 765, 520 N.Y.S.2d 745, 514 N.E.2d 1368 (1987); People v. Eckert, 117 Misc.2d 504, 458 N.Y.S.2d 494 (City Ct., Syracuse, 1983)), Defendants argue that this entire adjournment, which exceeds 90 days, is charged to the People.
Under People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985), “there must be a communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court ... or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record ...” (Emphasis added). See, also People v. Perre, 172 Misc.2d 976, 979, 660 N.Y.S.2d 632 (S Ct., N.Y. Cty, 1997) (“Statements (of readiness) were effective when made and filed with the court”).
There is no dispute that the People failed to state ready at each Defendant's arraignment. However, as the People point out, when the Court planned to set the trial down for February 17, 2012, defense counsel indicated that she was not available during the last two weeks of February, 2012, and asked that the matter be adjourned to March 9, 2012. See, arraignment transcript for Defendant McGaughey, dated December 5, 2011, p 2.
The law is clear that when the defense actively participates in setting the adjourn date of a matter, the time the defense requested is subtracted from the adjourn period. See, People v. Robinson, 269 A.D.2d 410, 707 N.Y.S.2d 867 (2d Dept, 2000) (People improperly charged with time where defense counsel “stated he would be on vacation for three weeks”) (citations omitted). See, also, People v. Morris, 94 A.D.3d 912, 941 N.Y.S.2d 862 (2d Dept, 2012); People v. Thomas, 223 A.D.2d 610, 611, 637 N.Y.S.2d 174 (2d Dept, 1996) (“delay not caused by the People's failure to be ready for trial, but by the unavailability of the defense counsel, who actively participated in setting the adjournment date.”).
On this basis, then, the People are only charged with the time from December 5, 2011 to February 17, 2012, the date the Court would have scheduled the matter, but for defense counsel's request for a longer date.
Since all subsequent adjournments have been for the purpose of considering either the People's motion to consolidate or Defendant's motion to dismiss, all further time is excluded in its entirety under CPL Sec. 30.30(4)(a). See, People v. Hodges, 12 A.D.3d 527, 784 N.Y.S.2d 638 (2d Dept., 2004); People v. Sivano, 174 Misc.2d 427, 429, 666 N.Y.S.2d 875 (App.Term, 1st Dept., 1997).
Since the People are charged with 73 days for the time between December 5, 2011 and March 9, 2012, all Defendants' motions to dismiss pursuant to CPL Sec. 30.30 are denied.
All other arguments advanced by the parties have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.