Opinion
2009KN101936
11-10-2011
The People of the State of New York, Plaintiff, v. Allen McKiver, Defendant.
For the People, Charles J. Hynes, District Attorney, Kings County, by Michael Eskenazi, Esq., Assistant District Attorney. For the Defendant, Steven Banks, Legal Aid Society by Brian D. Crow, Esq.
Appearances:
For the People, Charles J. Hynes, District Attorney, Kings County, by Michael Eskenazi, Esq., Assistant District Attorney.
For the Defendant, Steven Banks, Legal Aid Society by Brian D. Crow, Esq.
John H. Wilson, J.
Defendant is charged with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL Sec. 511(2)(A)(IV)), an unclassified misdemeanor, and related charges.
By motion dated June 23, 2011, Defendant seeks dismissal of the Criminal Court Complaint pursuant to CPL Sec. 30.30, asserting that the People have failed to comply with the time limitations imposed upon the prosecution of misdemeanors by that section.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated July 20, 2011 and the documents attached thereto as exhibits.
Defendant's motion is denied. The Court finds that the People are charged with 26 days in this matter.
The top count of the Criminal Court Complaint herein is an unclassified misdemeanor, punishable by "a term of imprisonment of not less than seven days nor more than one hundred eighty days." See, VTL Sec. 511(2)(b)(ii). Thus, there is no dispute that 90 days is the applicable time limit to this matter. CPL Sec. 30.30(1)(b).
Defendant was arrested in the instant matter on December 27, 2009, and arraigned that same day. Bail was set, and the matter was adjourned for conversion of the Criminal Court Complaint to December 31, 2009. Excluding the day of arraignment from our calculations (See, People v. Stiles, 70 NY2d 765, 520 NYS2d 745 (1987); People v. Eckert, 117 Misc 2d 504, 458 NYS2d 494 (City Ct., Syracuse, 1983)), this entire adjournment, or 4 days, is charged to the People.
On December 31, 2009, the People filed and served a certified copy of the New York State Department of Motor Vehicles abstract of the Defendant's driving record, allowing the complaint to be deemed an information. The People stated ready for the record, in open court pursuant to People v. Kendzia, 64 NY2d 331, 337, 486 NYS2d 888 (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 NYS2d 632 (S Ct., NY Cty, 1997) ("Statements (of readiness) were effective when made and filed with the court").
The Defendant had posted his bail, and this matter was adjourned for Discovery by Stipulation to February 23, 2010. This is a consent adjournment. See, People v. Lampley, 15 Misc 3d 1130(A), 841 NYS2d 221 (Crim. Ct., Kings Cty, 2007); People v. Camacho, 185 Misc 2d 31, 37, 711 NYS2d 283 (Crim. Ct., NY Cty 2000).
On February 23, 2010, the People filed their discovery with the Defendant and the Court, and the matter was adjourned for hearings and trial to April 15, 2010. Since the People are afforded a reasonable opportunity to be ready for hearings and trial, this time is excluded. See, People v. Fleming, 13 AD3d 102, 785 NYS2d 333 (1st Dept, 2004) and cases cited therein.
On April 15, 2010, the People stated not ready for hearings and trial, and asked for one week. Although the matter was then adjourned to June 14, 2010 for hearings and trial, it is well settled that post readiness, the People are to be charged with only the amount of time they request. See, People ex rel Sykes v. Mitchell, 184 AD2d 466, 468, 586 NYS2d 937 (1st Dept, 1992); People v. Urraea, 214 AD2d 378, 625 NYS2d 937 (1st Dept, 1995). Thus, the People are charged with 7 days between April 15, 2010 and June 14, 2010.
On June 14, 2010, the People stated not ready for hearing and trial, however, on the Court's own motion, the matter was adjourned until October 18, 2010. Defendant has attached a copy of the minutes of the June 14, 2010 calendar call to his motion dated June 23, 2011. Though it is clear that the People did not request a date certain, the minutes of the calendar call make clear that the purpose of the adjournment was to allow the Defendant time to clear his license (ie, pay his outstanding judgment with the DMV) with the implication that he would be in a better position to plea bargain.
The minutes of the calendar call for June 14, 2010, indicate that the People's offer was a plea to "511 sub 2, $750 fine, DIP and the Defendant to clear." See minutes of June 14, 2010 calendar call, p 2, attached to Defendant's motion dated June 23, 2011. The Court then asked if the Defendant was clearing his license. Defense counsel stated "(h)e's working on it. He's paid a little over half." The Court than stated "I'll put it over for October 18th and there again, I'm giving you a long adjournment so you can clear it up and come back with proof." See minutes of June 14, 2010 calendar call, p 2, attached to Defendant's motion dated June 23, 2011 (emphasis added).
Further, though the Court continued by stating that the adjournment was "for DMV abstract and hearing and trial" (See minutes of June 14, 2010 calendar call, p 2, attached to Defendant's motion dated June 23, 2011), on the Court's file, the Court wrote "DMV abstract." This is further evidence of the Court's intention to adjourn this matter to give the Defendant time to clear his license and receive a better plea offer from the People - an updated abstract would bear evidence of his efforts to pay down his balance with the Department of Motor Vehicles.
Thus, the adjournment from June 14, 2010 to October 18, 2010 is not charged to the People. See, People v. Reynolds, 240 AD2d 210, 211, 658 NYS2d 596 (1st Dept, 1997) ("The contested time periods relevant to defendant's CPL 30.30 speedy trial motion were properly excluded...in order to conduct plea negotiations."), citing People v. Ali, 195 AD2d 368, 369, 600 NYS2d 55 (1st Dept, 1993), lv den, 82 NY2d 804, 604 NYS2d 940 (1993) ("(T)he court properly excluded the periods...for the purpose of permitting a plea bargain conference...which delay was clearly for defendant's benefit.").
On October 18, 2010, the People filed an updated abstract and stated their readiness for hearing and trial. Whereas, the original abstract dated December 28, 2009 showed the Defendant owed a judgment of $600.00 and had a total of 9 suspensions (8 scoffs on 4 dates), the abstract dated February 24, 2010 showed a total of $1,440.00 in judgment with 7 suspensions (6 scoffs on 4 dates). Thus, the offer remained a plea to the charge. The matter was then adjourned for hearing and trial to December 16, 2010. This time will not be charged to the People.
On December 16, 2010, the People stated not ready for hearings and trial, and the People asked for December 20, 2010. The matter was then adjourned to March 3, 2011. Thus, the People are charged only with the time they requested, 5 days.
On March 3, 2011, the People stated not ready for hearing and trial, and the People requested one week. The matter was then adjourned to April 25, 2011. Thus, the People are charged with the time they requested, 7 days.
On April 25, 2011, the People again stated not ready for hearings and trial, and requested April 27, 2011. The matter was then adjourned to June 21, 2011, Thus, the People are charged with the time they requested, 3 days.
On June 21, 2011, the People stated ready for hearings and trial, however, Defendant requested a schedule for filing of the instant motion. Since all subsequent adjournments have been for the purpose of considering Defendant's motion to dismiss, all further time is excluded under CPL Sec. 30.30(4)(a). See, People v. Hodges, 12 AD3d 527, 784 NYS2d 638 (2d Dept., 2004); People v. Sivano, 174 Misc 2d 427, 429, 666 NYS2d 875 (App. Term, 1st Dept., 1997).
Thus, since the People are charged with a total of 26 days in this matter, Defendant's motion to dismiss pursuant to CPL Sec. 30.30 is 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.
Dated: Brooklyn, New YorkNovember 10, 2011
_______________________________
Hon. John H. Wilson, JCC