Opinion
2011-04-20
The PEOPLE of the State of New York v. Neil PRISCO, Defendant.
Robert Gursky, for defendant. ADA Gloria Lam, for the People.
Robert Gursky, for defendant. ADA Gloria Lam, for the People.
ELISA S. KOENDERMAN, J.
The defendant, Neil Prisco, is charged with Criminal Contempt in the Second Degree, Penal Law [“PL”] § 215.50(3) and two counts of Aggravated Harassment in the Second Degree, PL § 240.30(1)(a) & (1)(b). The defendant moves to dismiss the criminal proceeding against him on the ground that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law [“CPL”] § 30.30(1)(b), alleging that more than ninety days have elapsed since his arraignment. Because the Court calculates that more than ninety (90) days are chargeable to the People, the defendant's motion to dismiss is granted.
Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within ninety (90) days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three months. Although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day ( see People v. Stiles, 70 N.Y.2d 765, 520 N.Y.S.2d 745, 514 N.E.2d 1368 [1987] ).
Whether the People have satisfied their obligation to be ready under CPL § 30.30 is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional delays that transpire after readiness has been declared when such delays are attributable to the People and are ineligible for any exclusions under the statute ( see People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ).
For the People to be “ready for trial” under CPL § 30.30, they must meet two requirements. First, they must communicate their readiness either on the record in open court or by a written notice simultaneously sent to defense counsel and filed with the court clerk ( see People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 [1985] ). Second, the People must declare their readiness only when they are presently ready to proceed to trial ( see id.).
The People are presently ready to proceed to trial when they “have done all that is required of them to bring the case to a point where it may be tried” ( People v. England, 84 N.Y.2d 1, 4, 613 N.Y.S.2d 854, 636 N.E.2d 1387 [1994] ). Trial readiness is established where “the People have a valid accusatory instrument upon which the defendant may be brought to trial, where the People have complied with their obligation to produce for trial a defendant in their custody and where the People have complied with all pending proceedings required to be decided before trial can commence” ( People v. Caussade, 162 A.D.2d 4, 8, 560 N.Y.S.2d 648 [2d Dept. 1990] [internal citations omitted] ).
Once the People have declared their readiness for trial they have satisfied their obligation under the statute ( see People v. Giordano, 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d 1333 [1982] ) and are not chargeable with any delay in proceeding due to court congestion ( see People v. Chavis, 91 N.Y.2d 500, 502, 673 N.Y.S.2d 29, 695 N.E.2d 1110 [1998] ). The People are chargeable only with delay they have caused which “directly implicates [their] ability to proceed with trial” ( Cortes, 80 N.Y.2d at 210, 590 N.Y.S.2d 9, 604 N.E.2d 71).
Delays occasioned by adjournments which are requested or consented to by the defendant are not chargeable to the People ( see People v. Worley, 66 N.Y.2d 523, 525, 498 N.Y.S.2d 116, 488 N.E.2d 1228 [1985];People v. Kopciowski, 68 N.Y.2d 615, 617, 505 N.Y.S.2d 52, 496 N.E.2d 211 [1986] ). Specifically, the period of delay resulting from a defendant's pretrial motion and the time during which it is under consideration by the court is excludable as having been “caused by the defendant for his own benefit” ( Worley, 66 N.Y.2d at 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228;seeCPL § 30.30[4][a] ).
On June 9, 2010, the defendant was arraigned on the misdemeanor complaint and the case was adjourned to July 7, 2010 for the People to file and serve a supporting deposition to convert the complaint to an information. The People concede that there are twenty-seven (27) days chargeable to them for this adjournment.
On July 7, 2010, the People filed and served a supporting deposition from the complainant. Nevertheless, the court declined to deem the complaint an information, ruling that the complaint was defective because it was jurisdictionally and facially insufficient. The court adjourned the matter to July 29, 2010 for the People to file a superceding information. Since the People did not have valid accusatory instrument upon which they could try the defendant ( see People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 [1983];see also Caussade, 162 A.D.2d at 8, 560 N.Y.S.2d 648), there are twenty-two (22) days chargeable to the People for this adjournment.
On July 29, 2010, the People filed and served an amended supporting deposition from the complainant and announced ready for trial. The court set a motion schedule at defense counsel's request and adjourned the matter to September 24, 2010 for decision. Off-calendar on August 18, 2010, the defendant filed a motion to dismiss for facial insufficiency. On September 24, 2010, the People filed and served their affirmation in opposition to the defendant's motion and the court again adjourned the matter for decision to October 29, 2010. On October 29, 2010, the court adjourned the matter for decision to November 18, 2010. These adjournments are excludable as a period of delay resulting from the defendant's pretrial motion and the time during which it was under consideration by the court ( seeCPL § 30.30[4][a]; see also Worley, 66 N.Y.2d at 525, 498 N.Y.S.2d 116, 488 N.E.2d 1228). There are zero (0) days chargeable to the People for this period.
On November 18, 2010, the court rendered a written decision and order finding that the complaint was defective because it was jurisdictionally and facially insufficient. Nevertheless, the court denied the defendant's motion to dismiss and granted the People leave to file a superceding information. The court then adjourned the case to January 11, 2011 for the People to comply with its decision and order.
The adjournment following a decision on a pretrial motion generally is not chargeable to the People. The rationale underlying the exclusion of this period is that after the court renders a decision on a pretrial motion the People are entitled to a reasonable time to prepare for hearings and/or trial, and that the delay therefore results from motion practice ( see People v. Wells, 16 A.D.3d 174, 791 N.Y.S.2d 34 [1st Dept. 2005] [adjournment properly excluded as a reasonable time for People to prepare for hearings ordered by the court on pretrial suppression motion]; People v. Reed, 19 A.D.3d 312, 314, 798 N.Y.S.2d 47 [1st Dept. 2005]; People v. Forbes, 7 A.D.3d 473, 474, 777 N.Y.S.2d 470 [1st Dept. 2004]; People v. Fleming, 13 A.D.3d 102, 785 N.Y.S.2d 333 [1st Dept. 2004] [adjournment after court decided defendant's omnibus motion excludable since People were entitled to a reasonable time to prepare for trial]; People v. Rene, 292 A.D.2d 302, 739 N.Y.S.2d 262 [1st Dept. 2002] [adjournment properly excluded under CPL § 30.30(4)(a) as a reasonable period of time for the People to prepare for the newly ordered hearing]; People v. Hayes, 291 A.D.2d 334, 334–335, 739 N.Y.S.2d 12 [1st Dept. 2002] [adjournment to prepare for trial after denial of speedy trial motion was reasonable]; People v. Roebuck, 279 A.D.2d 350, 351, 719 N.Y.S.2d 82 [1st Dept. 2001]; People v. Ailes, 268 A.D.2d 370, 700 N.Y.S.2d 831 [1st Dept. 2000]; People v. Diaz, 275 A.D.2d 652, 653, 713 N.Y.S.2d 318 [1st Dept. 2000]; People v. Moolenaar, 262 A.D.2d 60, 694 N.Y.S.2d 348 [1st Dept. 1999] [adjournment for People to prepare for suppression hearings after decision on omnibus motion was a reasonable period of delay resulting from motion practice]; People v. David, 253 A.D.2d 642, 645, 679 N.Y.S.2d 354 [1st Dept. 1998] [adjournment following court's decision on motion excludable as a reasonable time for People to prepare for trial]; People v. Heine, 238 A.D.2d 212, 656 N.Y.S.2d 258 [1st Dept. 1997] [adjournment properly excluded as a reasonable amount of time to prepare the case following motion practice]; People v. Roberts 236 A.D.2d 233, 233–234, 653 N.Y.S.2d 332 [1st Dept. 1997]; People v. Chambers, 226 A.D.2d 284, 641 N.Y.S.2d 290 [1st Dept. 1996]; People v. Greene, 223 A.D.2d 474, 637 N.Y.S.2d 79 [1st Dept. 1996] [adjournment after court rendered decision on omnibus motion excludable since prosecution could not be expected to be ready for hearing immediately]; People v. Green, 90 A.D.2d 705, 455 N.Y.S.2d 368 [1st Dept. 1982] [adjournment for the People to prepare for pretrial suppression hearing reasonable since the People could “hardly be expected to prepare for a hearing before they were aware that the court was ordering one”]; People v. Hairston, 242 A.D.2d 466, 662 N.Y.S.2d 307 [1st Dept. 1997]; People v. Douglas, 156 A.D.2d 173, 548 N.Y.S.2d 217 [1st Dept. 1989] [adjournment requested by People after denial of speedy trial motion reasonable and not chargeable to them]; accord People v. Osorio, 39 A.D.3d 400, 401, 835 N.Y.S.2d 82 [1st Dept. 2007] [period of delay following reversal order excludable since “the People could not be expected to be ready instantly and were entitled to a reasonable period of time to contact witnesses and prepare for trial”] ).
Indeed, where the court has ordered a hearing on a defendant's pretrial suppression motion, the court has determined that it cannot decide the motion until it holds a hearing and makes findings of fact ( see People v. Taylor, 16 Misc.3d 339, 341–344, 836 N.Y.S.2d 399 [Crim. Ct., N.Y. County 2007] ). Because the motion therefore remains “under consideration by the court” until the court renders a decision after the hearing, the adjournment for a hearing ordered on a pretrial suppression motion is expressly excludable under the statute (see CPL § 30.30[4][a]; Taylor, 16 Misc.3d at 341–342, 836 N.Y.S.2d 399).
In contrast, the defendant's motion to dismiss in the instant case was plainly decided against the People on November 18, 2010 when the court ruled that the complaint was defective. The ensuing adjournment therefore did not result from motion practice but from the fact that the People did not have a jurisdictionally and facially sufficient information. Since the exclusion of a reasonable period of delay following motion practice for the People to “contact witnesses and prepare for trial” (Osorio, 39 A.D.3d at 401, 835 N.Y.S.2d 82) presupposes that the People have a valid accusatory instrument upon which to try the defendant, where, as here, the People have no such instrument, there is no justification for such an adjournment. An adjournment to prepare for trial where the People have no valid accusatory instrument upon which to try the defendant is fictitious. To exclude an adjournment following a decision finding the complaint defective serves no purpose other than to afford the People extra time to be ready to which they are not entitled under the statute.
Furthermore, had the court dismissed the complaint ( seeCPL § 170.30[1] [a] ) rather than granted the People leave to supercede it, there is no question that the time would be chargeable to the People until they declared their readiness upon a valid accusatory instrument refiled against the defendant ( see People v. Nuccio, 78 N.Y.2d 102, 571 N.Y.S.2d 693, 575 N.E.2d 111 [1991] [no statutory bar to reprosecution for nonfelony charges which had been dismissed for facial insufficiency] ). Simply because the court did not exercise its statutory authority to dismiss the complaint is no reason for a different rule to apply. Regardless of the court's action, the People had no valid accusatory instrument upon which to try the defendant and therefore could not be ready for trial. Accordingly, there are fifty-four (54) days chargeable to the People for the adjournment from November 18, 2010 to January 11, 2011 ( see Colon, 59 N.Y.2d at 921, 466 N.Y.S.2d 319, 453 N.E.2d 548;see also Caussade, 162 A.D.2d at 8, 560 N.Y.S.2d 648).
On January 11, 2011, the People answered not ready and requested additional time to file a superceding information since they were awaiting receipt of a certified copy of the underlying order of protection from family court. The court ordered the People to file a certificate of readiness off-calendar and adjourned the matter to February 17, 2011. On January 31, 2011, the People filed and served a superceding information and certificate of readiness. There are twenty (20) days chargeable to the People for this period.
The defendant filed and served the instant motion to dismiss pursuant to CPL § 30.30 off-calendar on February 10, 2011. On February 17, 2011, the defendant was arraigned on the superceding information. The court directed the People to respond to the defendant's motion and adjourned the matter to March 24, 2011 for decision. On March 24, 2011, the People filed and served their affirmation in opposition to the defendant's motion and the court again adjourned the matter for decision to April 20, 2011. These adjournments are excludable as a period of delay resulting from the defendant's pretrial motion and the time during which it was under consideration by the Court ( seeCPL § 30.30[4][a]; see also Worley, 66 N.Y.2d at 525, 498 N.Y.S.2d 116, 488 N.E.2d 1228). There are zero (0) days chargeable to the People for this period.
Pursuant to the above analysis, the Court finds that one hundred twenty-three (123) days are chargeable to the People to date. Accordingly, because more than ninety days have elapsed since the defendant's arraignment, the defendant's motion to dismiss pursuant to CPL § 30.30(1)(b) is granted.
This constitutes the decision and order of the Court.