Opinion
2015NY040890
03-11-2016
The People of the State of New York v. Francisco Sanchez, Defendant.
The People by A.D.A. Charles Caluccio IV The Defendant by Ying-Ying Ma The Legal Aid Society
The People by A.D.A. Charles Caluccio IV The Defendant by Ying-Ying Ma The Legal Aid Society Guy H. Mitchell, J.
The defendant was arraigned on June 29, 2015 and charged with Driving While Intoxicated per se (Vehicle and Traffic Law § 1192[2]), Driving While Intoxicated (Vehicle and Traffic Law § 1192[3]), and Driving While Ability Impaired (Vehicle and Traffic Law § 1192[1]). By Notice of Motion, served and filed on February 3, 2016, he has moved for an order dismissing the charges based on the People's failure to be ready for trial pursuant to Criminal Procedure Law 30.30[1]. The People served and filed their Response on February 10, 2016 and the defendant served and filed a Reply on March 4, 2016.
Because the most serious crime the defendant is charged with is a class A misdemeanor, the People were required to be ready for trial within ninety days of commencement of the criminal action, absent excludable time (CPL 30.30 [1][b]). In his motion to dismiss, the defendant argues that more than ninety days are chargeable to the People. Because the Court finds that 92 days are chargeable to the People, the defendant's motion is granted with respect to the two misdemeanor charges.
On June 29, 2015 the defendant was arraigned on a misdemeanor complaint and the court adjourned the case until July 20, 2015 for the People to served and file a supporting deposition. The People concede and the court finds that the 21 days of this adjournment are charged to them.
On July 20, 2015, the court adjourned the case to September 30, 2015 for the People to served and file a supporting deposition. On September 22, 2015, the People served and filed the required supporting deposition and a certificate of readiness. Although the certificate of readiness is dated September 21, 2015, the court stamp indicates that these documents were filed on September 22. The parties agree that this tolled the statutory speedy trial clock (see People v Kendzia, 64 NY2d 331 [1985]; People v Stirrup, 91 NY2d 434 [1998]). Both the People and the defense incorrectly suggest that 63 days of this adjournment should be charged to the People because the certificate of readiness is dated September 21, 2015. However, statements of readiness made in the absence of defense counsel are deemed effective at the time of filing as long as defense counsel is promptly notified (see People v Anderson, 252 AD2d 399 [1st Dept 1998]). Because the People filed the supporting deposition and certificate of readiness on September 22, 64 days of this adjournment period are charged to the People.
On September 30, 2015, the court adjourned the case until December 3, 2015 for motion practice. This entire adjournment is excluded (CPL 30.30[4][a]).
On December 3, 2015, the People consented to hearings and the court adjourned the case to January 27, 2016 for hearing and trial. The defense argues that this adjournment should be charged to the People. However, the court finds this entire adjournment is excluded as a reasonable period for the People to prepare for trial after the granting of hearings (see People v Phillips, 70 AD3d 562 [1st Dept 2010]; People v Sinisgalli, 24 Misc 3d 135(A) [App Term 1st Dept 2009]).
On January 27, 2016 the People answered not ready for trial and requested that the court adjourn the case until February 3, 2016. The court adjourned the case to February 3, 2016. On February 3, the People answered ready for trial and the defense filed the instant motion.
The defense argues the People should be charged seven days for the adjournment from July 27 until February 3 while the People argue that they should be charged only six days for this adjournment because they answered ready for trial on February 3. The People's position is contrary to well settled law. In People v Stirrup (91 NY2d 434 [1998]) the Court of Appeals explained how the days of an adjournment are to be counted citing General Construction Law § 20. That section requires that the number of days within which an act is required means the number of calendar days exclusive of the first calender day (see General Construction Law § 20). "New York courts have consistently held that, when computing a period of days, the first day is excluded but the last day is included." (See People v DiMeglio, 294 AD2d 239, 240 [1st Dept 2002]; People v Burgess, 153 NY 561 [1897]; People v Stiles, 70 NY2d 765 [1987]; People v Stirrup (91 NY2d 434 [1998]). Therefore, the People are charged with the seven calendar days of January 28, January 29, January 30, January 31, February 1, February 2 and February 3.
The Court finds that 92 days are charged to the People. Accordingly, defendant's motion to dismiss pursuant to Criminal Procedure Law 30.30[1] is granted.
The charge of Driving While Ability Impaired under Vehicle and Traffic Law § 1192[1] remains because it is not subject to dismissal pursuant to Criminal Procedure Law § 30.30 (see People v Taylor, 189 Misc 2d 313 [App Term 2nd Dept 2001]; People v Gonzalez, 168 Misc 2d 136 [App Term 1st Dept], appeal denied, 88 NY2d 936 [1996]). Dated:March 11, 2016 New York, New York ________________________ Guy H. Mitchell Judge of the Criminal Court