Opinion
2009KN018960.
Decided March 29, 2011.
The People were represented by Jamie R. Begley, Assistant District Attorney, Kings County District Attorney's Office, Brooklyn, NY.
Defendant Pinkney was represented by Legal Aid Society, by Michael F. Pate, Esq., Brooklyn, New York.
Defendant Smith was represented by Louis Schwartz, Esq., Brooklyn, NY.
Defendant Townsend was represented by Paul Brennan, Esq., New York, NY.
Defendant, DAQUAN SMITH, is currently charged with two counts of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01); and one count of Possession of Pistol Ammunition (Administrative Code § 10-131[I][3]). He is jointly charged in this complaint with co-defendants DERRICK PINKNEY, docket no. 2009KN018960 and KEVIN TOWNSEND, docket no. 2009KN018962, both of whom have joined in this motion.
Defendant Smith (and his co-defendants by adoption of his motion) moves to dismiss the accusatory instrument pursuant to CPL § 30.30 (1) (b) on the grounds that he has been denied his statutory right to a speedy trial.
Defendant Smith is the only party to have actually submitted papers regarding the instant motion. Therefore this motion will reference only defendant Smith and his arguments, however, the finding here are to be deemed as applicable to all three defendants.
Under CPL § 30.30 (1) (b) the People must be ready for trial within ninety (90) days from the commencement of a criminal action when the defendant is charged with one or more offenses, at least one of which is an A Misdemeanor or Unclassified Misdemeanor punishable by no more than one (1) year in jail. Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. People v. Fields, 214 AD2d 332 (1995); People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980).
Calculation of Time Charged to the People Under CPL § 30.30
The instant action commenced with the defendant's arraignment on March 10, 2009. This court has previously ruled on the calculation of chargeable time in this matter based upon a prior CPL § 30.30 motion submitted by defendant Smith on December 4, 2009. In that decision, filed by this court on April 29, 2010, the court held that there were 56 total days chargeable to the People from March 10, 2009 to April 29, 2010.
There were a total of 10 submissions on 4 separate and distinct motions pending before the court at the time that this court rendered its decision on defendant Smith's CPL § 30.30 motion. Since then there have been 5 more submissions on 2 other separate and distinct motions pending before the court. In summary, the parties have filed the following papers:
12/4/09 — Defendant Smith filed a motion to dismiss pursuant to CPL § 30.30
1/4/10- The People filed papers in opposition to Smith's CPL § 30.30 motion
1/11/10 — Defendant Smith replied to the People's CPL § 30.30 opposition papers
2/4/10- The People filed a motion to take DNA evidence from all 3 defendants
3/1/10- Defendant Pinkney made a motion in opposition to DNA evidence —
Defendant Pinkney made a motion to controvert the search warrant
— Defendant Pinkney made a motion to dismiss for facial insufficiency
4/5/10 — The People filed a Response to defendant Smith's Reply to the People's opposition to defendant Smith's motion to dismiss under CPL § 30.30.
— The People filed an amendment to their DNA motion —
The People filed an opposition to defendant Pinkney's motion to controvert the search warrant
5/5/10 — Defendant Smith filed a motion for leave to reargue his 30.30 motion.
6/1/10 — The People filed an affirmation asking the court to deny defendant Smith's motion to reargue his 30.30 motion.
1/11/11 — Defendant Smith filed a second CPL § 30.30 motion pertaining to the period following April 29, 2010.
2/22/11 — The People filed an affirmation in opposition to the defendant Smith's second motion to dismiss under CPL § 30.30.
3/17/11 — The People filed an additional affirmation in opposition to the defendant
Smith's second CPL § 30.30 motion
The original motion to dismiss under CPL § 30.30 was denied on 4/29/10.
The motion for DNA retrieval was granted on 4/29/10.
The motion to dismiss for facial insufficiency was denied on 6/29/10.
The motion to controvert the search warrant was denied on 6/29/10.
The motion for leave to reargue the CPL § 30.30 motion was denied on 7/21/10.
At nearly every step of this case there has been some type of motion pending before this court, primarily at the request of the defendants. The only stage when there was not a motion pending before this court was during the period between July 21, 2010 when the defendant's motion for leave to reargue was denied, and December 9, 2010 when the defendant asked for leave to file a second motion to dismiss pursuant to CPL § 30.30. It is well-settled that the period during which a case is adjourned for defense motions is excludable in computation of statutory speedy trial time. People v. Burton, 133 Misc 2d 701 (Crim. Ct. NY County 1986); People v. Sai, 223 AD2d 439 (1st Dept 1996) (court found that time requested by defense counsel to submit motions is excludable from speedy trial calculations); CPL § 30.30 (4) (a). Because both motions made after this court's previous decision on April 26, 2010 were filed by defendant Smith, this entire period during which these motions were pending or under consideration, from April 26, 2010 to July 21. 2010, is excludable. People v. Heller, 120 AD2d 612 (the court held that where the record establishes that the defendant's motion was actually under consideration by the court during a particular period, that time should not be charged to the People); See, also, People v. Terrence, 163 AD2d 437 (1990). Therefore, we will focus our review on the period following July 21, 2010.
On July 21, 2010, the court denied the defendant's motion to reargue. During the pendency of that motion as well as during the consideration of the motions to dismiss that had been filed in this case, defendants Smith and Pinkney both expressed a desire to set aside the scheduling of the taking of DNA samples from the defendants until it was clear whether the cases would be dismissed based upon the pending motions.
11/10/09 Transcript at p. 3, l. 23 — p. 4, l.1 — Louis Schwartz, counsel for defendant Smith: "So I would request that the motion priorities be that 30.30 motion precede in the request for [the defendants'] DNA because if the 30.30 motion is granted, then the DA request becomes moot."
4/29/10 Transcript at p. 4, l. 25 — p. 5, l. 3 — Louis Schwartz, counsel for defendant Smith: "I though the DNA sampling issue is basically moot if the 30.30 motion is granted? So if you grant the 30.30 motion, there will be no reason for my client to submit to DNA sampling."
4/29/10 Transcript at p. 7, l. 23 — p. 8, l. 3 — Michael Pate, counsel for defendant Pinkney: "I want to respond. I see from [the court's] decision on the DNA swab, 14 days from today. My client voluntarily submitted to a swab. If you are still ruling on a sufficiency motion, then I would ask that we —"
Court: "I will extend it until — — People, do not take any sampling, I will extend the sampling, the taking of the DNA sampling, until I render my decision on the next court date. Is that OK?"
ADA: "Okay"
Court: "We are going to come back, so we are all on the same page now?
Mr. Pate: Yes
It was understandable that the defendants would prefer to postpone having their DNA taken and stored if there was any possibility that the cases might be dismissed based upon one of those pending motions. Therefore, the parties agreed to forestall any DNA swabbing until such time that the various dismissal motions were fully resolved. Now, defendant Smith argues that the People acted in a dilatory fashion because they did not take the DNA swabs within a short time of the court's April 29, 2010 ruling on the People's motion for leave to collect such evidence. However, it is clear that for at least a portion of this time, the defense expressed a clear desire to have the procedure delayed. The defendant can not ask the People to delay carrying out the investigation of their case, and then complain that they took too long to complete the work during that time. This is especially true when the main reason for the delay is the fact that the defendants have filed four separate motions during that period.
On July 21, 2010, after denying the final motion that was pending at that time, the court asked the People to declare a date when the DNA samples could be taken from the defendants. The People offered August 2, 2010, a date consistent with the court's directive that the samples be taken within 14 days of the court's decision and order on the DNA issue. The People also suggested that such samples could be taken on August 13, August 19, or August 20, if any of those dates were more convenient for the defense. Mr. Schwartz, counsel for defendant Smith, chose August 20, 2010. That date was later communicated to defendant Pinkney and defendant Townsend, both of whom agreed to appear for DNA sampling on the chosen date. The case was adjourned to August 20, 2010 for that purpose.
7/21/10 Transcript, p. 4, l. 10-20
On August 20, 2010, all three defendants did submit to DNA sampling and appeared in court. Defendant Pinkney asked that the court restrict the District Attorney to use the DNA sample only for the purpose of the investigation and prosecution of the current case and not to allow it to be stored at the Office of the Chief Medical Examiner ( OCME) for use in other investigations. Defendant Smith made the same request and also demanded the Police Department's "mixture profile paperwork" on the gun and the exact code of the mixture used. Although the District Attorney's Office assured defendant Smith that this information was contained in the DNA paperwork it was unclear whether there would be defense motions on this issue. Therefore, the court adjourned the case to October 20, 2010 for motions or hearing and trial.
This adjournment would be excludable for either purpose because the People are entitled to a reasonable adjournment for witness procurement and trial preparation. What constitutes "reasonable" should be determined on a case by case basis, depending on the complexity of the issues and the number of necessary witnesses. In general, an adjournment of two weeks has been held reasonable. When the court, for reasons of calendar management, sets a longer adjournment, the remainder is usually charged to the People, unless a briefer adjournment was requested by them and they had previously filed a certificate of readiness or they toll the chargeable time by subsequently filing such certificate, neither of which occurred in the present case. People v. Stirrup, 91 NY2d 434 (1998); People v. Kendzia, 64 NY2d 331 (1985). This time would also be excludable for motion practice. People v. Sai, 223 AD2d 439 (motion practice is excludable); People v. Brown, 99 NY2d 488 (2003) (time is excluded even if the defendant changed strategy and decided not to file a motion).
It is critically important to also note, however, that where a case has been adjourned for the collection, analysis and reporting of DNA evidence case law dictates that the People are not to be charged with the time required to complete this task as long as it is done in a reasonably timely manner. In People v. Washington, 43 NY2d 772 (1977) the Court of Appeals held that an adjournment for exceptional circumstances is excludable under CPL § 30.30 (4) (g) when the delay is caused by an investigation that shows promise of the "probable availability of new evidence within a reasonable period of time, and a justified need for additional time to prepare the People's case." Id at 774. Although this decision was rendered a decade before DNA typing was introduced as a law enforcement technique, more recent cases have made the logical application of this ruling to the science of genetics.
In People v. Williams, 244 AD2d 587 (1997) the Second Department upheld a trial court's ruling that excluded delays caused by DNA sampling, testing and reporting under CPL § 30.30 (4) (g). In that case there was a four-and-one-half-month delay from the time the samples were taken to the time that the defendant made a motion to dismiss. The lower court found that there had been "no showing that the time consumed by the tests was other than reasonable and necessary to obtain valid genetic test results." Therefore, the court found the time to be excludable under CPL § 30.30 (4) (g), noting that CPL § 30.30 was intended only to address those delays occasioned by prosecutorial inaction, not cases where the People had made a diligent effort to obtain evidence. ( People v. Williams, 163 Misc 2d 212 at 222, citing, People v. McKenna, 76 NY2d 59). See, also, People v. Robinson , 47 AD3d 847 (2d Dep't 2008) ("delays occasioned by the necessity of obtaining the results of DNA testing constitute an exceptional circumstance so that the time should not be charged to the People"). 0 days chargeable from August 20, 2010 to October 20, 2010.
On October 20, 2010, the People made an oral report of the preliminary results of the DNA testing, but they did not yet have a written report. The case was adjourned to December 9, 2010 for the People to provide the defendants with a written DNA report. This time is excludable. People v. Washington, supra; People v. Williams, supra; People v. Robinson; supra. 0 days chargeable.
On December 9, 2010, the People provided the defendants with a written DNA report from the OCME. The case was then adjourned to February 24, 2011 for the defendant Smith's instant motion to dismiss. This entire period is excludable. People v. Burton, supra; People v. Sai, 223 AD2d 439; CPL § 30.30 (4) (a). 0 days chargeable.
This court's calculations are summarized as follows:
Period Event Charged
As previously calculated: 56 days
April 29, 2010 — June 2, 2010 Motion practice 0 days
June 2, 2010 — June 29, 2010 Motion practice 0 days
June 29, 2010 — July 21, 2010 Motion practice 0 days
July 21, 2010 — August 20, 2010 DNA Collection 0 days
August 20, 2010 — October 20, 2010 Mtns/Hrg-TL 0 days
DNA Results
October 20, 2010 — December 9, 2010 DNA report 0 days
December 9, 2010 — February 24, 2011 30.30 motion 0 days
Total 56 days
Based on the foregoing, in total, the People are charged with 56 days of includable delay since the commencement of the action on March 6, 2008.Because less than 90 days of chargeable time has elapsed, the defendant's motion to dismiss, pursuant to CPL § 30.30, is denied.
The foregoing is the decision and the order of the court.