Opinion
Docket No. CR-025116-22QN
05-05-2023
The People of the State of New York, v. Armando Ramirez-Luna, Defendant.
Unpublished Opinion
MARIA T. GONZALEZ, J.
Armando Ramirez-Luna, hereinafter defendant, moves by notice filed March 17, 2023, to dismiss the charges against him pursuant to CPL 30.30 and CPL 170.30 (1). The People, in an affirmation in opposition filed March 28, 2023, oppose the motion arguing that they have not surpassed speedy trial time limitations, and that they have acted in good faith in serving their certificate of compliance (COC) and statement of readiness (SOR). Defendant is charged with Operating a Motor Vehicle while under the Influence of Alcohol (VTL § 1192.2); Operating a Motor Vehicle while under Influence of Alcohol (VTL § 1192.3); and Operating a Motor Vehicle while under the Influence of Alcohol (VTL § 1192.1). Upon review of the party submissions, the court file, and relevant caselaw, the defendant's motion is GRANTED.
Procedural History
Defendant was arraigned on October 8, 2022, and represented at has arraignment by Florence Morgan, Esq., a staff attorney at the Legal Aid Society (L.A.S.). After defendant's arraignment, the case was adjourned to November 4, 2022, for the People to file a COC.
Defense counsel Michael Paul, Esq., author of defendant's motion, was retained by defendant on November 3, 2022, and appeared in court for defendant on November 4, 2022. On November 4, 2022, appearing in AP1, and, in the presence of the Assistant District Attorney (ADA), Paul announced that he had been retained by defendant, filed a notice of appearance bearing his first and last name, his address, his work phone number, his cellphone number, his email, an indication that he was "retained," and that defendant requested a Spanish interpreter. See Defendant's Aff., Exhibit A. Upon counsel's appearance, the court indicated on its action sheet the attorney's name, "Paul," and that he was privately retained. The People then indicated to all those present that the People were not ready, and the court adjourned the matter until January 17, 2023, for a COC.
On November 16, 2022, the People served Florence Morgan, Esq. of L.A.S. with a COC, SOR, and discovery, off calendar. On January 17, 2023, Michael Paul submitted an affirmation of engagement, and indicated therein that he had not received any discovery material. The matter was adjourned to March 3, 2023. On March 3, 2023, defense counsel Paul reiterated that he had not received any discovery material, and a motion schedule was set for defendant to file the instant motion challenging the People's COC and SOR. Later that day, the People, for the first time, served attorney Paul with the COC, SOR, and discovery via the email he listed on his notice of appearance.
By motion filed March 17, 2023, defendant moved to dismiss the case pursuant to CPL 30.30 and 170.30(1). The People, in an affirmation in opposition filed March 28, 2023, opposed the motion, arguing that they inadvertently, and in good faith, served Francis Morgan, Esq., of L.A.S., and not Michael Paul, Esq., withing speedy trial time limitations.
Discussion
The People are ready for trial when they communicate their actual readiness in open court or file with the court and serve on defense counsel a certificate of actual readiness, at a time when the People are in fact ready to proceed (see People v. Kendzia, 64 N.Y.2d 331, 337 [1985]). There is no question that the SOR filed with the court on November 16, 2022, "conveyed the People's readiness to proceed with their case against the defendant" (See People v. Dixon, 40 Misc.3d 1229[A], *2 [Sup Ct, Kings County 2013]). The question here, however, is whether, by serving the COC, SOR, and discovery on Florence Morgan, Esq., of the L.A.S., the People effectively communicated their trial readiness to defense counsel Michael Paul, Esq.
Defendant argues that the COC and SOR were served on the wrong defense counsel and are thus ineffective. The People counter that they have acted in good faith in serving attorney Florence Morgan and have thus not surpassed speedy trial time limitations.
This Court agrees with the defendant that the People's serve was ineffective "[a]s service of the statement of readiness upon defendant's prior attorney did not stop the speedy trial clock" See People v. Telemaque, 43 Misc.3d 138 [A] [App. Term, 2d Dep't 2014]. The People's reliance on their alleged "good faith" in serving Florence Morgan, Esq., of L.A.S. is unavailing."Just because the People must make a statement of readiness in good faith does not imply that they need only attempt serve in good faith." See People v. Chen, 78 Misc.3d 1212 (A) (Crim. Ct. Queens County 2023).Unless the People send the COC to a defense attorney's address, "the fact that the People acted in good faith is irrelevant." Id at *2. "What is relevant is that the People have an obligation to inform" the defense attorney of their readiness. (People v. Chittumuri, 189 Misc.2d at 746-47 [Crim. Ct. Queens County 2001]).
The People were clearly on notice of defense counsel's appearance and correct physical and email address from defense counsel's detailed notice of appearance, and actual appearance. As in People v. Chittumuri, supra, new counsel appeared on the record in the presence of the Assistant District Attorney. Similarly, in People v. Telemaque, supra, new counsel appeared on the record, in open court in the presence of an Assistant District Attorney and indicated that he was newly retained. Moreover, as argued by defendant, the New York State Webcrims website, https://iapps.courts.state.ny.us, indicated that ever since November 4, 2022, defendant was and is represented by private attorney Michael Paul, Esq.
Indeed, "common custom and practice in Criminal Courts of NYC recognize the substitution of counsel [when an attorney appears on the record and/or files a Notice of Appearance] without the formality of the Court uttering the words prior counsel 'is relieved'" (People v. Telemaque, 36 Misc.3d 1239 [A] at *2, n. 2, [Crim. Ct. Kings Co. 2012]). Moreover, courts have consistently held that "when the People are on notice that a new attorney has been assigned to represent a defendant, or a new attorney was retained and has appeared and become the attorney of record and filed a 'notice of appearance,' service of the certificate of readiness on the prior attorney will not automatically satisfy the Kendzia requirement that 'defense counsel' be promptly notified of the People's readiness." see, e.g., People v. Burroughs, 35 Misc.3d 1209 [A] *3, [Sup. Ct, Bronx County 2012].
This Court finds that under the facts and circumstances presented in this case, including counsel's physical appearance, detailed notice of appearance, as well as new counsel's specific request for discovery in his affirmation of engagement, the People were on notice that L.A.S. was not the attorney to whom they should send their COC and SOR, and that their COC and SOR served on the L.A.S. on November 16, 2022 did not stop the speedy trial clock.
As a result, the People never validly stated ready for trial within their allotted time. CPL 30.30 [1][b]. This Court finds the time from October 8, 2022, to March 3, 2023, a total of 146 days, is charged to the People, defendant's motion is granted, and this case is dismissed.
The foregoing constitutes the opinion, decision, order of the Court.