Opinion
2017NY016989
01-29-2018
The PEOPLE of the State of New York, Plaintiff, v. Edwin G. NARVAS, Defendant.
For the Defendant: The Legal Aid Society (Yosha Gunasekera, Esq., of counsel) For the People: Cyrus R. Vance, Jr., District Attorney, New York County (Lindsey Stearns, Esq., of counsel)
For the Defendant: The Legal Aid Society (Yosha Gunasekera, Esq., of counsel)
For the People: Cyrus R. Vance, Jr., District Attorney, New York County (Lindsey Stearns, Esq., of counsel)
Judy H. Kim, J.
On March 30, 2016, the defendant was charged with: VTL § 1192(3) (Driving While Intoxicated); VTL § 1192(2) (Driving While Intoxicated); and VTL § 1192(1) (Driving While Ability Impaired). The defendant now moves to dismiss the accusatory instrument pursuant to CPL § 30.30.
CPL § 30.30
CPL § 30.30 provides that where, as here, "a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony" the defendant's motion to dismiss must be granted if the People are not ready for trial within ninety days of the commencement of the criminal action ( CPL § 30.30[1][b] ). If the People are not ready for trial within the relevant statutory time period, the prosecution will be dismissed unless the People can demonstrate that specific adjournments should be excluded ( People v. Brown , 28 NY3d 392, 403 [2016] ).
Defendant argues that 102 chargeable days have elapsed and that the accusatory instrument should therefore be dismissed. The People maintain that only 74 chargeable days have elapsed. The Court has reviewed the defendant's motion to dismiss, the People's opposition, and the Court's case file and finds the following periods to be charged and excluded pursuant to CPL § 30.30 :
ANALYSIS
March 18, 2017–May 1, 2017: 34 Days Charged
Defendant was arraigned on March 18, 2017, at which point this case was adjourned to May 1, 2017. The People filed a supporting deposition and Certificate of Readiness ("COR") off-calendar on April 21, 2017. It is undisputed that the 34 days that elapsed before the supporting depositions and COR were filed is charged to the People.
May 1, 2017—June 29, 2017
On May 1, 2017, this case was adjourned to June 29, 2017, for response and decision on defendant's omnibus motion. It is undisputed that this adjournment is excluded (See CPL § 30.30[4][a] ; People v. Driver , 248 AD2d 172, 173 [1st Dept 1998] ).
June 29, 2017—August 7, 2017
On June 29, 2017, the Court ruled on defendant's omnibus motion and adjourned this case to August 7, 2017, for hearings and trial. It is undisputed that this adjournment is excluded ( People v. Nazarov , 55 Misc 3d 1201(A) [Crim Ct, Kings County 2017] ).
August 7, 2017—September 19, 2017: 14 Days
On August 7, 2017, the People were not ready because the assigned Assistant District Attorney was out of the office. Accordingly, this case was adjourned to September 19, 2017. The People filed a COR off-calendar on August 21, 2017. The Court charges the People with the 14 days that elapsed before the filing of the COR (See e.g. , People v. Pestana , 195 Misc 2d 833 [Crim Ct, New York County 2003] ), to which the People concede.
September 19, 2017–October 26, 2017: 9 Days
On September 19, 2017, the People were not ready because a police officer witness was "unable to come to court due to his childcare falling through at the last minute" (People's Opposition at ¶ 5[v] ). Accordingly, the case was adjourned to October 26, 2017. The People subsequently filed a COR off-calendar on September 28, 2017. The defendant argues that this COR was illusory and, therefore, 37 chargeable days elapsed during this adjournment. The People argue that the COR was valid and, therefore, only nine chargeable days elapsed.
"[A]n off-calendar statement of readiness is presumed truthful and accurate" and the defendant "bears the ultimate burden of demonstrating, based on the People's proffered reasons and other relevant circumstances, that the prior statement of readiness was illusory" ( People v. Brown , 28 NY3d 392, 399–400, 405 [2016] ). The defendant has failed to satisfy his burden here. The defendant argues that the People's failure to be ready at their subsequent appearance, nearly one month later, on October 26, 2017 demonstrates that the People were not ready when they filed the COR on September 28, 2017. However, the fact that the People were not ready immediately following the filing of a COR does not, in and of itself, render a prior COR illusory ( People v. Seepersad , 52 Misc 3d 400, 406 [Crim Ct 2016] ). Moreover, the explanation for the People's failure to be ready at the October 26, 2017 appearance—the absence of a police officer witness—is unexceptional and, as it does not indicate that the COR was inaccurate when it was filed, does not demonstrate that the COR was illusory (See People v. McLeod , 44 Misc 3d 505, 509 [Crim Ct, New York County 2014] ["an unexceptional reason for post-COR unreadiness that does not demonstrate that the COR was inaccurate, such as ‘the complainant is unavailable today,’ does not render the COR illusory"] ).
Defendant's reliance on the Appellate Term, Second Department, decision in People v. Carthon to support a contrary conclusion is misplaced. In that case, the Court held that a COR was illusory when it was filed by the People without confirmation that a necessary police officer witness was available on that date. The Carthon court did not hold, as the defendant suggests, that the mere fact that the officer was unavailable at the first post–COR appearance rendered that COR illusory ( People v. Carthon , 53 Misc 3d 88, 92 [App Term, 2d Dept 2016] ). As the defendant has not established that the People failed to ensure that all necessary witnesses were available on September 28, 2017, Carthon does not support the defendant's argument.
Accordingly, as defendant has not met his burden to overcome the presumption of validity that attaches to the September 28, 2017 COR, the Court charges the People with the nine days that elapsed before the filing of the COR (See e.g. , People v. Pestana , 195 Misc 2d 833 [Crim Ct, New York County 2003] ), to which the People concede.
October 26, 2017–December 7, 2017: 13 Days
On October 26, 2017, the People were not ready for trial because a police officer witness failed to appear, and requested an adjournment to November 8, 2017. The case was adjourned to December 7, 2017. The Court charges the People with the thirteen days requested, to which the People concede ( People v. Foster , 52 Misc 3d 1205(A) [Crim Ct, New York County 2016] ).
December 7, 2017—January 10, 2018: 4 Days
On December 7, 2017, the People were not ready because a witness was on vacation. The People requested an adjournment to December 11, 2017. The Court charges the People with the four days requested, to which the People concede (Id. ).
January 10, 2018–January 29, 2018
On January 10, 2018, the People were ready for trial at noon. On that date, defense counsel filed the instant motion. This case was then adjourned to January 29, 2018 for decision. It is undisputed that this period is excluded (See CPL § 30.30 [4 ][a]; People v. Driver , 248 AD2d 172, 173 [1st Dept 1998] ).
CONCLUSION
In view of the foregoing, the Court concludes that 74 days are chargeable to the People pursuant to CPL § 30.30, and therefore, defendant's motion to dismiss the accusatory instrument is denied. Accordingly, it is
ORDERED that, pursuant to CPL § 30.30, the defendant's motion to dismiss the accusatory instrument on the grounds that his statutory right to a speedy trial has been violated is DENIED .
This constitutes the Decision and Order of the Court.