Opinion
No. 2014KN067811.
08-10-2015
The PEOPLE of the State of New York v. Anthony SIMON, Defendant.
Alaina Dartt, The Legal Aid Society, Brooklyn, for Defendant. Kenneth Thompson, District Attorney, Kings County by Yasmin Dwedar, Assistant District Attorney, Brooklyn, of Counsel, for the People.
Alaina Dartt, The Legal Aid Society, Brooklyn, for Defendant.
Kenneth Thompson, District Attorney, Kings County by Yasmin Dwedar, Assistant District Attorney, Brooklyn, of Counsel, for the People.
ANDREW BORROK, J.
The instant matter is before the court because the defendant moves to dismiss the pending charges on the grounds that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law (CPL) §§ 30.30(1)(b) and 170.30(1)(e), arguing that 107 have elapsed that are chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). The People oppose the motion and contend that only 57 days have elapsed that are chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). For the reasons set forth below, the court finds that in fact 72 days have elapsed that are chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). Accordingly, the defendant's motion is denied.
The defendant argues that the People failed to serve and file the supporting deposition of Andrew Han and the People have therefore never converted the complaint into an information. Defendant's Notice of Motion, pg. 3. However, on October 23, 2014, the People served and filed the supporting deposition of Andrew Han which supporting deposition converted the complaint into an information.
DISMISSAL PURSUANT TO CPL § 30.30(1)(b)
Pursuant to CPL § 30.30(1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument. People v. Walton, 165 Misc.2d 672, 674 (Crim Ct, Richmond County 1995). In this case, the highest crimes charged, Petit Larceny (PL § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40), are misdemeanors punishable by a sentence of imprisonment not to exceed one year. PL § 70.15(1). Where a defendant is charged with a misdemeanor punishable by a sentence of imprisonment of more than three months, a speedy trial motion must be granted where the People are not ready for trial within 90 days of commencement of the criminal action. CPL § 30.30(1)(b).
The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute. People v. Santos, 68 N.Y.2d 859, 861 (1986). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. Id.
Ready for trial for CPL § 30.30(1) purposes necessarily has two requirements. First, the People must communicate their readiness on the trial court's record either by stating that they are ready for trial in open court on the record transcribed by a stenographer or by a statement of readiness (SOR) sent by the People on defense counsel and the appropriate court clerk to be placed in the original record. See People v. Kendzia, 64 N.Y.2d 331, 337 (1985). Second, the People must in fact be ready to proceed. "The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness." Id. at 337. Additionally, the People cannot be ready for trial until they have converted a misdemeanor complaint to an information. People v. Caussade, 162 A.D.2d 4, 8 (2d Dept 1990). Pre-readiness delays', i.e. the time for CPL § 30.30 purposes prior to the time in which the People have both converted a misdemeanor complaint into an information and are ready for trial, are charged as non-excludable time under CPL § 30.30(1)(b) (except to the extent that they may otherwise be excluded under CPL § 30.30(4) ). See People v. McBee, 172 Misc.2d 196 (Sup Ct, Kings Co, 1997). Discovery by stipulation (DBS) in Kings County is in lieu of motion practice, and adjournments for DBS are excluded from speedy trial calculations irrespective of whether the People are ready for trial. CPL § 30.30(4)(a) ; People v. Dorilas, 19 Misc.3d 75, 76–77 (App Term, 2d Dept 2008) ; People v.. Khachiyan, 194 Misc.2d 161, 166 (Crim Ct, Kings County 2002).
On September 9, 2014, the defendant was arraigned. At arraignments, the defendant was charged with Petit Larceny (PL § 155 .25), Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40) and Possession of Burglar's Tools (PL § 140.35). The People served and filed the supporting deposition of Police Officer Christopher Ferreira which supporting deposition converted the charge of Possession of Burglar's Tools (PL § 140.35). The People, however, did not have the supporting deposition of the eyewitness, Andrew Han, which supporting deposition was necessary to convert the remaining charges of Petit Larceny (PL § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40). The People did not announce that they were ready on any of the charges at that time and the court adjourned the matter until October 23, 2014 to AP2 for the supporting deposition.
On October 23, 2014, the People served and filed the supporting deposition of Andrew Han which supporting deposition converted the charges of Petit Larceny (PL § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40). When the court inquired as to whether the People had the supporting deposition of Police Officer Christopher Ferreira (which supporting deposition had already been served and filed at arraignments), the People mistakenly indicated that they did not have that supporting deposition. Tr at 2, lines 13–14, AP2 (Oct. 23, 2014); Tr at 2, lines 16–19, Arraignments (September 9, 2014). The court indicated that the Petit Larceny (PL § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40) charges were converted and adjourned the case until December 2, 2014 for DBS and full conversion. Significantly, at no time at the October 23rd appearance or at any other time off-calendar by a statement of readiness did the People announce that they were ready for trial on any of the charges. Tr at 2, lines 15–16, All Purpose Part 2 (Oct. 23, 2014). Accordingly, the case continued to be in a pre-readiness posture and the entire 44 day period from September 9, 2014 until October 23, 2014 is charged as non-excludable time pursuant to CPL § 30.30(1)(b).
The People are entitled to a reasonable adjournment to prepare for hearings and trial once hearings are ordered. People v. Greene, 223 A.D.2d 474 (1st Dept), appeal denied 88 N.Y.2d 879 (1996) ; People v. Hernandez, 268 A.D.2d 344 (1st Dept), lv denied 95 N.Y.2d 253 (2000); People v. Lucas, 25 Misc.3d 1213(A), (Crim Ct, Kings County 2009). On December 2, 2015, the People dismissed the charge of Possession of Burglar's Tools (PL § 140.35). The People did not have DBS and the matter was adjourned until January 5, 2015 for DBS. On January 5, 2015, the People served and filed DBS and the matter was further adjourned until February 4, 2015, for hearings and trial. Accordingly, the entire period from October 23, 2014 until January 5, 2015 is excludable time pursuant to CPL § 30.30(1)(b).
An adjournment for motion practice and the period during which the motion is "under consideration by the court" is excludable time. CPL § 30.30(4)(a) ; People v. Stewart, 57 AD3d 1312, 1314 (3rd Dept 2008). On February 4, 2015, the People served and filed a motion to consolidate this case with the defendant's other case . The court adjourned the case until March 27, 2015 for the court's decision. On February 27, 2015, the defendant served and filed an Opposition to People's Motion to Consolidate. On March 27, 2015, the motion to consolidate was still under consideration by the court and the matter was further adjourned until April 20, 2015. On April 20, 2015, the court denied the People's motion to consolidate and the matter was adjourned again until May 28, 2015 for hearings and trial. Accordingly, the entire period from January 5, 2015 until May 28, 2015 is excludable time pursuant to CPL § 30.30(1)(b).
Docket 2014KN067811.
Docket 2014KN085876.
Post-readiness delays can be chargeable to the People only if they become unready. People v. Anderson, 66 N.Y.2d 529 (1985). When a case is in a post-readiness posture, for CPL § 30.30 purposes, specific adjournments requested by the People are chargeable as non-excludable time, but adjournments that extend beyond the specific adjournment requested by the People are excluded time. People v. Bruno, 300 A.D.2d 93, 95 (1st Dept), lv denied 100 N.Y.2d 641 (2003) ; People v. Dushain, 247 A.D.2d 234, 236 (1st Dept), appeal denied 91 N.Y.2d 1007 (1998). For example, if the matter is on the calendar for hearings and trial and the People announce "not ready" and request a specific adjournment of seven days and, due to calendar conflicts, the next court date is scheduled for the eighth day, only seven days (i.e., and not eight days), for CPL § 30.30 purposes, are charged as non-excludable time. However, in a pre-readiness posture, as the court previously noted, the entire adjournment is chargeable to the People unless otherwise specifically excluded under CPL § 30.30(4). See Bruno, 300 A.D.2d.
On May 28, 2015, the People indicated that they were not ready for trial because the assigned assistant district attorney was engaged on trial in Trial Part 2. The People requested seven days and the matter was adjourned until June 8, 2015 for hearings and trial and to track the other case . However, because the People have never communicated their actual readiness in open court or filed with the court and served on defense counsel a statement of actual readiness for CPL § 30.30 purposes, the case is not in a post-ready posture. The case continues to be in a pre-readiness posture. Accordingly, the entire 11 day period between May 28, 2015 and June 8, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b).
Docket 2014KN085876.
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On June 8, 2015, the People again indicated that they were not ready to proceed to trial because the assigned assistant district attorney was on trial again in Trial Part 2. The People requested seven days and the matter was adjourned to June 25, 2015 for hearings and trial. However, as discussed above, inasmuch as the matter is not in a post-ready posture, the entire period between calendar dates continue to be charged for CPL § 30.30(1)(b) purposes. Accordingly, the entire 17 day period between June 8, 2015 and June 25, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b).
On June 25, 2015, the People indicated that they were ready for trial. The defendant however served and filed the instant motion to dismiss on speedy trial grounds pursuant to CPL § 30.30(1)(b). The court adjourned the case until August 11, 2015 for the court's decision. Accordingly, for CPL § 30.30 purposes, the entire period from June 25, 2015 until August 11, 2015 is excludable time.
CONCLUSION
In sum, this court finds that the People are charged with 72 days of non-excludable time. Accordingly, the defendant's motion to dismiss pursuant to CPL § 30.30(1)(b) is denied.
The foregoing constitutes the decision and order of the court.