Opinion
CR-022297-19KN
03-09-2020
The PEOPLE of the State of New York, Plaintiff, v. Bogdan PIASECKI, Defendant.
On February 7, 2020, Defendant moved to dismiss the accusatory instrument pursuant to CPL § 30.30(1). Opposition was filed by the People on February 21, 2020. Defendant filed a reply affirmation on March 4, 2020.
Pursuant to CPL § 30.30(1), the applicable speedy trial period is determined by the highest charge in the accusatory instrument. Where the highest charge is a class A misdemeanor, the People are required to state their readiness for trial within ninety (90) days of the commencement of the criminal action (See CPL § 30.30[1][b] ).
Defendant has the initial burden under CPL § 30.30 to demonstrate by sworn allegations of fact that there has been an inexcusable delay beyond the time set forth in the statute (See People v. Santos , 68 NY2d 859, 861 [1986] ). Once Defendant has alleged that more than the statutorily prescribed time has elapsed without a declaration of readiness by the prosecution, the prosecution bears the burden of establishing sufficient excludable delay (See Id. ; People v. Berkowitz , 50 NY2d 333, 348—349 [1980] ). The burden is on the People to ensure "in the first instance" that the record of the proceedings is sufficiently clear to enable the court deciding the 30.30 motion to make an informed decision as to whether the People should be charged (See People v. Cortes , 80 NY2d 201, 215-216 [1992] ).
Defendant contends that this matter should be dismissed on speedy trial grounds as 169 days are chargeable to the People. The People's opposing affirmation asserts that only 88 days are chargeable to the People. Defendant, in his reply, modifies his contentions as to the number of days chargeable, but in any event, asserts that the People should be charged with 161 days.
Based on review of the court file and the submissions of the parties, the Court finds as follows:
June 11, 2019-August 5, 2019
On June 11, 2019, Defendant was arraigned and charged with Assault in the Third Degree (PL § 120.00[1] ); Endangering the Welfare of a Child (PL § 260.10[1] ); Menacing in the Third Degree (PL § 120.15); and Harassment in the Second Degree (PL § 240.26[1] ). The People were not ready for trial and the matter was adjourned for conversion.
On July 23, 2019, the People filed and served two supporting depositions and an off-calendar statement of readiness. Accordingly, 42 days are chargeable to the People.
Defendant contends that the statement of readiness on July 23, 2019 was illusory because the People were not ready at subsequent court appearances. A statement of readiness is presumed truthful and accurate and a Defendant who challenges is must determine that it is illusory (See People v. Brown , 28 NY3d 392 [2016] ). The statement is only illusory if, at the time it was filed, the People were not actually ready (See Brown , 28 NY3d at 406-407 ). In this instance, Defendant has failed to demonstrate that the People were not actually ready on July 23, 2019.
August 5, 2019-September 10, 2019
On August 5, 2019, the matter was adjourned to September 10, 2019 for discovery by stipulation. It is undisputed that this time is excludable. An adjournment for discovery by stipulation is excludable as a period of delay for the purposes of CPL 30.30 (See CPL 30.30[4][a] ; People v. Dorilas , 19 Misc 3d 75 [App Term, 2d Dept 2008] ).
September 10, 2019-October 8, 2019
On September 10, 2019, the matter was adjourned to October 8, 2019 for hearings and trial. It is undisputed that the time is excludable. The People are entitled to a reasonable period of time to prepare for trial (See People v. Reed , 19 AD3d 312 [1st Dept 2005] ).
October 8, 2019-November 6, 2019
On October 8, 2019, the People answered not ready because the arresting officer was unavailable and requested 7 days. Of note, while both the People and Defendant's motion papers indicate that the People requested 14 days, the transcript from the October 8, 2019 appearance demonstrates that the People, in fact, requested only 7 days. "[I]f a prosecutor requests that a case be adjourned after announcing readiness, the prosecution is only charged with the actual number of days that it requested" ( People v. Hodges , 12 AD3d 527 [2004] ). The Court adjourned the matter to November 6, 2019. Accordingly, 7 days are chargeable to the People.
November 6, 2019-December 13, 2019
On November 6, 2019, the People answered not ready for trial as the complaining witness was unavailable and requested 14 days. The Court adjourned the matter to December 13, 2019. Accordingly, 14 days are chargeable to the People.
December 13, 2019-January 31, 2019
On December 13, 2019, the People were not ready as the complaining witness was again unavailable. The People requested 14 days. The matter was adjourned to January 31, 2019.
Defendant contends that the People should be charged the entire period from December 13, 2019 through January 31, 2020, or at minimum, from January 1, 2020 through February 6, 2020 because the People did not serve a certificate of compliance, as required by the new legislation, until February 6, 2020. In opposition, the People contend that the law should not be retroactively applied to 2019 matters and, even if it were applied to 2019 matters, should not be applied here because this time period would still have been excludable in 2019. Therefore, the People argue that this time should continue to be excludable until the next court appearance. The People rely on People v. Percell, 2020 NY Misc. Lexis 479 (NY County 2020), a New York Country Criminal Court matter, in which an adjournment from December 2019 to January 2020 was deemed excludible.
As to the time that the People should be charged for the remainder of 2019, the People are only charged the adjournment that they requested (See People v. Hodges , 12 AD3d 527 [2004] ). The 2020 law does not retroactively require the People to have filed a certificate of compliance in 2019. Accordingly, the People are charged with 14 days for the remaining time in December 2019.
The People incorrectly assert that the new legislation should not apply to 2019 matters. Legislative amendments that take effect during the pendency of a case apply to subsequent proceedings ( See Simonson v. Internat'l Bank, 14 NY 281, 289 [1964] ). However, the new legislation does not invalidate prior proceedings (See Berkovitz v. Arbib & Houlberg, Inc., 230 NY 261, 270 [1921] ); See Charbonneau v. State , 148 Misc 2d 891 [Ct. Cl. 1990] ).
On January 1, 2020, the new legislation went into effect. Pursuant to CPL§ 245.50(3), the statement of readiness alone is insufficient to announce ready for trial. A certificate of compliance must be filed and served by the People in order to be deemed ready for trial for purposes of CPL § 30.30 (See CPL § 245.50[3] ).
There have been several lower court decisions regarding the calculation of chargeable time pursuant to CPL § 30.30 relating to matters in which the People previously announced ready in 2019. One school of thought is that the People are required to have filed a certificate of compliance on January 1, 2020, the date the law went into effect, as required by the Legislature, and are to be charged from January 1, 2020 until they file a certificate of compliance (See People v. Lobato , Docket CR-015493-19KN [Kings County 2020] ). The People were aware of the requirements mandated by the new law and it was their obligation to comply. Another judicial interpretation is that the first fifteen days of January are excludable for the purpose of discovery, pursuant to CPL § 245.10(1)(a) (See People v. Roland, Docket CR-012494-19KN [Kings County 2020] ).
Applying either theory to the facts herein, the People are beyond the 90-day statutory requirement. If the Court were to exclude the first fifteen days pursuant to CPL § 245.10(1)(a), the People would be charged from January 16, 2020 through February 4, 2020, when they filed the certificate of compliance, which is 19 days. Prior to the new legislation, the People were already charged with 77 days; thus, the People would be charged 96 days total. If the People are charged with the time from January 1, 2020 until they filed and served a certificate of compliance, they would be charged an additional 34 days in 2020, for a total of 111 days.
The entire period time between January 1, 2020 and January 31, 2020 is not excludable, as the People assert. The People's reliance on People v. Percell, 2020 NY Misc. Lexis 479 (NY County 2020) is not compelling as the facts and circumstances are distinguishable. In Percell, the Court excluded the adjournment from December 13, 2019 to January 13, 2020 because on December 13, 2019, the People answered ready for trial and it was Defendant who requested the adjournment. Furthermore, the People filed a certificate of compliance on December 31, 2019 and three supplemental certificates of compliance on January 2, 2020, January 6, 2020 and January 8, 2020. In this instance, the People answered not ready for trial on the December 13, 2019 appearance and requested the adjournment. Then, at the following court appearance on January 31, 2020, the People failed to file a certificate of compliance. Furthermore, of note, the People make no assertions that they were unable to file the certificate of compliance due to extraordinary circumstances pursuant to CPL § 245.50.
January 31, 2020-February 7, 2020
Notably, on January 31, 2020, the parties appeared in Court and the People failed to file a certificate of compliance. The matter was adjourned to February 7, 2020 for the People to file a certificate of compliance. The People filed and served the certificate of compliance off-calendar on February 4, 2020. Therefore, the People are charged with the 4 days from January 31, 2020 to February 4, 2020.
February 7, 2020-March 9, 2020
This time is excludable for motion practice.
Even viewing the matter in the light most favorable to the People, the People have exceeded their 90-day statutory requirement pursuant to CPL § 30.30. Whether the Court follows the reasoning in Lobato , in which the People would be charged with 111 days, or Roland, in which the People would be charged 96 days, dismissal is granted. Accordingly, this Court need not determine whether the clock began to run on January 1, 2020 or January 16, 2020.
Conclusion
Defendant's motion to dismiss is granted. This matter is dismissed in its entirety.
The foregoing constitutes the Decision and Order of the court.