Opinion
CR-009512-20KN
02-03-2021
The PEOPLE of the State of New York, Plaintiff, v. Gerald E. MOSLEY, Defendant.
Defendant is charged with Petit Larceny, Penal Law § 155.25, Criminal Possession of Stolen Property in the Fifth Degree, Penal Law § 165.40, Attempted Assault in the Third Degree, Penal Law § 110/120.00(1), Menacing in the Third Degree, Penal Law § 120.15, and Harassment in the Second Degree, Penal Law § 240.26(1). Defendant moves, pursuant to CPL §§ 30.30 and 170.30(1)(e) to dismiss the accusatory instrument and for such other relief as this Court may deem just and proper. The People oppose this application.
Pursuant to CPL § 30.30(1), "the applicable speedy trial time is determined based on the highest charge in the accusatory instrument." People v Brito , 61 Misc 3d 1208 (Crim Ct, Kings County 2018). Where the highest charge against a defendant is a class A misdemeanor, as here, the People are required to state their readiness for trial within 90 days of commencing the criminal action. See CPL § 30.30(1)(b). Defendant has the initial burden of demonstrating a delay of more than 90 days. See People v Santos, 68 NY2d 859 (1986). Once a defendant has made that showing, the burden shifts to the People to demonstrate that certain periods within that time should be excluded. Id.
On January 1, 2020, new legislation took effect imposing additional discovery requirements on the People before they could be deemed ready for trial pursuant to CPL § 30.30. "Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met." CPL § 30.30(5). "Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness." Id.
On May 3, 2020 legislative amendments to CPL § 245 took effect, extending the timeline for the People to serve their certificate of compliance, when defendant is not in custody during the criminal case, from 15 days to no later than 35 calendar days. See CPL § 245.10(1)(a)(ii). Nevertheless, the People cannot be ready for trial until they have converted a misdemeanor complaint to an information. See People v Caussade , 162 AD2d 4 (2d Dept 1990). "A statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed." CPL § 30.30(5-a).
On March 20, 2020, New York State Governor Andrew Cuomo issued Executive Order 202.8 which limited court operations to essential matters during the pendency of the Covid-19 health crisis and suspended CPL § 30.30. The suspension of CPL § 30.30 was reaffirmed in subsequent executive orders until the suspension ended upon the issuance of Executive Order 202.67 on October 4, 2020.
As an initial matter, the People contend that the 35 calendar days designated by CPL § 245.10(1)(a)(ii) is excludable as a reasonable period of delay for them to comply with their discovery obligations, citing CPL § 30.30(4)(a). The People equate defendant's ability to waive discovery required by CPL § 245.10(1) as tantamount to a demand to produce discovery, which prior to the new legislation invoked an excludable discovery time frame under CPL § 30.30(4)(a). The People assert that the previous practice in Kings County of discovery by stipulation, which also preceded the enactment of the new legislation, resulted in excludable discovery time under CPL § 30.30(4)(a), therefore, they should still benefit from this exclusion. Lastly, the People argue that as the new legislation did not amend the portions of CPL § 30.30(4)(a) which pertain to the exclusions as described above, the case law pertaining to this section is still applicable.
The Court finds the People's arguments without merit. The enactment of CPL § 245 on January 1, 2020 created an automatic discovery obligation for the People, obviating a demand to produce. The custom in Kings County of discovery by stipulation was "the functional equivalent of pretrial discovery and motion practice," framed in CPL § 30.30(4)(a)'s "reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: ... demand to produce; request for a bill of particulars; pre-trial motions." People v Dorilas , 19 Misc 3d 75 (App Term, 2d Dept 2008) ; See CPL § 30.30(4)(a). Discovery by stipulation was the progeny of a demand to produce and ensuing motion practice for a failure to produce, which are now obsolete due to the automatic discovery law. Although the case law pertaining to these exclusions has not been expressly overturned, the basis of a demand to produce from which the cases derive their authority is now defunct.
The People's reliance on People v Roland, 67 Misc 3d 330 (Crim Ct, Kings County 2020), to be afforded 35 excludable days to comply with their discovery obligations is misplaced. The Roland court made their determination in a trial posture where discovery was complete under the 2019 standards, hearings had concluded, both sides had answered ready, and the matter was adjourned into 2020 due to court congestion. The Roland court allowed for an exclusion given that the trial ready matter now had additional discovery obligations imposed due to the legislation taking effect in the new year which was the only impediment to trial. Significant to the current matter before this Court, the Roland court in footnote 3, stated,
Of course, if some other provision of law makes this period includable, such as the failure to convert a misdemeanor complaint to an information, then the period would still be included in the speedy trial calculation. See, e.g. People v. Caussade, 162 AD2d 4, 8, 560 N.Y.S.2d 648 (2d Dept. 1990) (People need valid accusatory instrument before they can proceed); People v. Desouza, 30 Misc 3d 1227(A), 926 N.Y.S.2d 345 (Crim. Ct. Kings Co. 2011) (time during which misdemeanor complaint remains unconverted is chargeable to the People).
Id. The legislature now unequivocally demands automatic discovery from the People and has not articulated an exemption. The instant matter was commenced 5 months after the enactment of the January 1, 2020 legislation giving the People ample time to review and understand their obligations. Furthermore, the People's argument is disingenuous wherein the instant matter is not converted. Therefore, the Court holds that the 35 calendar days expressed in CPL § 245 for the People to comply with their automatic discovery obligations and file a certificate of compliance is chargeable.
On May 1, 2020, defendant was arraigned and the matter was adjourned to August 19, 2020. On July 1, 2020, the People filed the supporting deposition of Amun Prubia. Neither the physical nor electronic court files demonstrate that this supporting deposition was served on defense counsel. Furthermore, the People did not file a supporting deposition of Evan Martin, the custodian of the video surveillance reviewed by the deponent for the charges of Attempted Assault, Menacing, and Harassment. Therefore, the accusatory instrument remains unconverted. The People could not be ready for trial until they had converted all charges of the misdemeanor complaint to an information. See People v Caussade , 162 AD2d 4 (2d Dept 1990) ; see also CPL § 30.30(5-a). However, this matter was commenced and adjourned during the period at which CPL § 30.30 was suspended by various Executive Orders, therefore, this entire period is excluded.
On August 19, 2020, the matter was administratively adjourned to January 15, 2021 due to the ongoing Covid-19 health crisis. The matter did not appear on this Court's calendar until January 19, 2021. Executive Order 202.67 ended the suspension of CPL § 30.30 on October 4, 2020. Therefore, the People are charged from October 4, 2020 to January 19, 2021, 107 days.
On January 19, 2021, the matter appeared in Conference 1, a briefing schedule for the instant motion was set, and the matter was adjourned to February 3, 2021 for decision. On January 29, 2021, the People filed the certificate of compliance, there is no proof of service. Since the period of delay resulting from pre-trial motions is excluded, this period of time is not charged to the People. See CPL § 30.30(4)(a).
Accordingly, this Court finds that the People are charged with 107 days and defendant's motion to dismiss pursuant to CPL §§ 30.30 and 170.30(1)(e) is granted.
The foregoing constitutes the decision and order of this Court.