Opinion
Ind. No. 72663/23
09-29-2023
The PEOPLE of the State of New York v. Reshawn RUSSELL, Defendant.
Vivian Cedeno, Esq., Bayside, for the defendant. Melinda Katz, District Attorney, Kew Gardens (Brian Cox, of Counsel) for the People.
Vivian Cedeno, Esq., Bayside, for the defendant.
Melinda Katz, District Attorney, Kew Gardens (Brian Cox, of Counsel) for the People.
Mary L. Bejarano, J. Summary of the Court's Decision: For the purposes of CPL 30.30 (2) (a), the commencement of a defendant's commitment to the custody of the sheriff begins from the date of arraignment when bail is fixed. As the People have announced their readiness for trial within 90 days from same, the defendant's motion for release pursuant to CPL 30.30 (2) (a) is denied.
OPINION OF THE COURT
The defendant is charged with, inter alia , Criminal Possession of a Weapon in the Second Degree ( Penal Law § 265.03 [1] [b] ). The defendant was arrested on June 23, 2023 and arraigned on a felony complaint on June 24, 2023. At the defendant's arraignment, the arraignment judge set bail in the amount of $50,000 cash, $50,000 credit card, $50,000 insurance company bail bond, or $500,000 partially secured surety bond at 10%. The defendant has remained in custody since the defendant's arrest.
By oral application on September 27, 2023, the defendant moved for release from custody pursuant to CPL 30.30 (2) (a), arguing that the commencement of the defendant's commitment to the custody of the sheriff began from the date of his arrest, June 23, 2023, and the People did not file their Certificate of Compliance and statement of readiness until the 91st day on September 22, 2023. The People opposed the application, arguing that the commencement of the defendant's commitment to the custody of the sheriff did not begin until the date of arraignment, June 24, 2023, and therefore, the People announced their readiness for trial within 90 days from same. In an oral ruling, the Court denied the defendant's motion for release, finding that the commencement of the defendant's commitment to the custody of the sheriff began from the date of arraignment at which time bail was fixed by the Court. This written decision explains the Court's oral ruling.
Pursuant to CPL 30.30 (2) (a),
"where a defendant has been committed to the custody of the sheriff ... in a criminal action he or she must be released on bail or on his or her own recognizance, upon such conditions as may be just and reasonable, if the people are not ready for trial in that criminal action within: (a) ninety days from the commencement of his or her commitment to the custody of the sheriff ... in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a felony"
The issue before the Court is when, for the purposes of CPL 30.30 (2) (a), "the commencement of his or her commitment to the custody of the sheriff" begins: from the date of arrest upon which the defendant first comes into custody, or from the date of arraignment at which time the Court remands the defendant or fixes bail.
To date, this Court has been unable to find any caselaw that squarely addresses this issue. In People ex rel. Chakwin v. Warden, NYC Correctional Facility, Rikers Island , 63 N.Y.2d 120, 125, 480 N.Y.S.2d 719, 470 N.E.2d 146 (1984), the Court of Appeals held that upon a petition for a writ of habeas corpus, a defendant's showing of a violation of CPL 30.30 (2) (a) would result in the defendant's release, either by a fixing of bail at an amount which the defendant could post or by a release of the defendant on his own recognizance ( 63 N.Y.2d at 125, 480 N.Y.S.2d 719, 470 N.E.2d 146 ). Under the particular facts of the case, the Chakwin Court found that the People were not ready for trial within 90 days as of the commencement of the defendant's arraignment ( id. at 126, 480 N.Y.S.2d 719, 470 N.E.2d 146 ). However, in a footnote, the Chakwin Court noted,
"[t]hough not discussed by either party, it appears from the record that the commencement of the defendant's custody as defined in CPL 30.30 (2) (a) may have actually been one day prior to the commencement of the criminal action against him .... We need not resolve the question because we have found a violation of CPL 30.30 (2) (a), even if 207 were the proper total number of days" ( id. at 126 n., 480 N.Y.S.2d 719, 470 N.E.2d 146 ).
Therefore, even though this footnote is mere dicta and therefore not binding on this Court, it is arguable that for the purposes of CPL 30.30 (2) (a), the commencement of a defendant's commitment to the custody of the sheriff should be from the date of arrest.
As for more recent decisions, in People ex rel. Nieves v. Molina , 207 A.D.3d 797, 798, 171 N.Y.S.3d 389 (2d Dept. 2022), the Second Department sustained a writ of habeas corpus in the nature of a CPL 30.30 (2) (a) application, finding that more than 90 days were chargeable to the People, including the 86-day period between the date of arraignment to the date upon which the People filed their Certificate of Compliance ( 207 A.D.3d at 798, 171 N.Y.S.3d 389 ). This supports the argument that the commencement of a defendant's commitment to the custody of the sheriff should be from the date of arraignment. However, in a very recent decision, People ex rel. Fast v. Molina , 219 A.D.3d 1384, 196 N.Y.S.3d 802 (2d Dept. September 18, 2023), the Second Department referred to the date of commencement of the defendant's custody to the sheriff as "the commencement of the defendant's confinement on April 27, 2023" ( 219 A.D.3d 1384, 196 N.Y.S.3d 802 ). Without knowing the specific facts of the case, it is unclear to this Court whether the commencement of the defendant's confinement was from the defendant's custody upon arrest or arraignment. Meanwhile, some lower courts, without citing to any authority, have relied upon the date of arrest as the date of commencement of the defendant's custody to the sheriff in their CPL 30.30 (2) (a) calculations (see e.g., People v. Erby , 68 Misc.3d 625, 628, 128 N.Y.S.3d 418 [Sup. Ct., Bronx County 2020] ; People v. Dixon , 40 Misc.3d 1229[A], 2013 N.Y. Slip Op. 51343[U], *2-3, 2013 WL 4416341 [Sup. Ct., Kings County 2013] ).
The Court therefore turns to the statute for guidance. Pursuant to CPL 1.20 (35), "the ‘commitment to the custody of the sheriff,’ when referring to an order of a court located in a county or city which has established a department of correction, means commitment to the commissioner of correction of such county or city." As this matter is pending in Queens County, the "commitment to the custody of the sheriff" refers to the commitment to the commissioner of the New York City Department of Correction. Upon a defendant's arrest, the defendant is in police custody, not the Department of Correction. Once the defendant is brought before the Court at arraignment, however, the Court then imposes a securing order, which may commit the defendant to the custody of the Department of Correction, either if the Court has remanded the defendant during the pendency of the criminal action or fixed bail that the defendant has not yet posted (see CPL 500.10 [4], [5] ; CPL 510.10 [1] ). Thus, it follows from the language of CPL 1.20 (35) that the commencement of a defendant's commitment to the custody of the sheriff starts from the date of arraignment, not the date of arrest.
This conclusion is consistent with the timeline set forth in CPL 170.70 for an application for release of a defendant based upon the People's failure to replace a misdemeanor complaint by information. CPL 170.70 provides that subject to certain exceptions, a defendant who "has been in the custody of the sheriff," "either at the time of his arraignment or subsequent thereto," for a period of more than five days must be released on their own recognizance. The language of CPL 170.70 therefore supports the argument that a defendant may be committed to the custody of the sheriff only upon the defendant's arraignment. Accordingly, any calculation pursuant to CPL 170.70 commences from the date of arraignment or thereafter ( People ex rel. Neufeld v. McMickens , 70 N.Y.2d 763, 520 N.Y.S.2d 744, 514 N.E.2d 1368 [1987] ).
The language of CPL 170.70 is noticeably different from that of CPL 180.80, which, subject to certain exceptions, mandates the granting of an application for release of a defendant charged with a felony complaint where a preliminary hearing has not commenced or the People have not filed an indictment within a 120-hour period. Under CPL 180.80, the 120-hour period begins "once the defendant has been held in custody" "from the time of arrest or subsequent thereto." It is clear that the term "custody" here does not mean "custody of the sheriff," as used under CPL 30.30 (2) (a) or CPL 170.70. Significantly, the phrase "commitment to the custody of the sheriff" is absent from the language of CPL 180.80. Moreover, the Practice Commentary to CPL 180.80 explains that "where custody commences by arrest, the hours start to tick away immediately and not simply upon commitment after arraignment" (Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, CPL 180.80 ). Therefore, unlike CPL 30.30 (2) (a) or CPL 170.70, any calculation pursuant to CPL 180.80 does not commence from the date of arraignment, but from the defendant's arrest or thereafter.
Based on the foregoing, the Court finds that for the purposes of CPL 30.30 (2) (a), the commencement of a defendant's commitment to the custody of the sheriff must be from the date of arraignment when bail is fixed. Here, the defendant was arraigned and bail was fixed on June 24, 2023. The People filed a Certificate of Compliance and statement of readiness on September 22, 2023, the 90th day from the date of arraignment. As the People announced their readiness for trial within 90 days from the commencement of the defendant's commitment to the custody of the sheriff, the defendant's motion for release pursuant to CPL 30.30 (2) (a) is denied.
This opinion constitutes the decision and order of the Court. The Clerk of the Court is directed to enter this Order. IT IS SO ORDERED.