Opinion
No. 2015QN021315.
11-14-2016
The PEOPLE of the State of New York, v. Gurwinder SINGH, Defendant.
Queens County District Attorney's Office by ADA Christopher M. Antonino, Esq., for the People. Queens Law Associates by Thomas McCullough, Esq., for the defendant.
Queens County District Attorney's Office by ADA Christopher M. Antonino, Esq., for the People.
Queens Law Associates by Thomas McCullough, Esq., for the defendant.
ALTHEA E. DRYSDALE, J.
The defendant, Gurwinder Singh, moves to dismiss the criminal action on the ground that he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law (CPL) sections 170 .30(1)(e), and 30.30(1)(b).
The defendant is charged with the class A misdemeanor of bail jumping in the third degree (Penal Law § 215.55 ). Accordingly, the People have 90 days to announce readiness when the most serious offense is a class A misdemeanor (CPL 30.30[1][b] ).
Based on the parties' submission, and my review of the record, the defendant's motion is granted.
At issue, is whether the People can be ready for trial without, first, obtaining the defendant's fingerprints.
Criminal Procedure Law (CPL) § 160.10(1)(b) provides, in relevant part,
"... following the arraignment upon a local criminal court accusatory instrument of a defendant whose court attendance had been secured by [ ] an appearance ticket [ ], the arresting or other appropriate police officer or agency must take or cause to be taken fingerprints of the arrested person or defendant if an offense which is the subject of the arrest or which is charged in the accusatory instrument is a misdemeanor defined in the penal law" (see also CPL § 150.70 )
And, while "[f]ingerprinting is a vital criminal justice instrument, which identifies persons who are charged with or convicted of offenses and is also useful in protecting the innocent from erroneous accusation" (Peter Preiser, Practice Commentaries McKinney's CPL 160.10 ] ), the failure to obtain the defendant's fingerprints is not a legal impediment that precludes the People from answering ready for trial (see People v. Ashkinadze, 167 Misc.2d 80, 84 [Crim Ct, Kings County 1995] [the absence of fingerprints in no way impedes the People from stating "ready"] ).
In Ashkinadze, the defendant moved to dismiss the prosecution on the grounds that the People denied his statutory right to a speedy trial pursuant to CPL 30.30(1)(b). 88 days elapsed between the defendant's appearance on the desk appearance ticket issued to him and when the People took his fingerprints. The court granted the defendant's motion because they found that the People failed to diligently move to obtain the defendant's fingerprints. Most importantly, the court found that the People were not precluded from answering ready for trial without the defendant's fingerprints, if they were in fact ready to proceed to trial (see also People v. Crandall, 228 A.D.2d 794, 796 [3d Dept 1996] [nothing contained in CPL 160.10 suggests that fingerprinting is a predicate to personal or subject matter jurisdiction of the court). As such, the court makes the following findings:
The action commenced on July 1, 2015, when the defendant appeared in court on a desk appearance ticket (CPL 30.30[5][b] [the criminal action commences on the date the defendant first appears in local criminal court in response to an appearance ticket]; People v. Stirrup, 91 N.Y.2d 434, 439 [1998] ). The court adjourned the case to July 17, 2015 for the results of the defendant's fingerprints. There is no indication that the People were ready for trial on this date. 16 days are included (People v. Hamilton, 46 N.Y.2d 932 [1979] [record does not reflect that the People were actually ready for trial]; see People v. Cortes, 80 N.Y.2d 201, 215–16 [1992] [it is the People's burden to make the record sufficiently clear as to whether the People should be charged]; see also People v. Liotta, 79 N.Y.2d 841, 843 [1992] [same] ).
On July 17, 2015, the case was adjourned to July 23, 2015 for the defendant to be fingerprinted. There is no indication that the People were ready for trial on this date. 6 days are included (id. ).
On July 23, 2015, the case was adjourned to September 17, 2015 for the defendant to be fingerprinted. There is no indication that the People were ready for trial on this date. 56 days are included (id. ).
On September 17, 2015, the case was adjourned to October 16, 2015 for the defendant to be fingerprinted. There is no indication that the People were ready for trial on this date. 29 days are included (id. ).
On October 16, 2015, the case was adjourned to December 4, 2015 for the defendant to be fingerprinted. There is no indication that the People were ready for trial on this date. 49 days are included (id. ).
It should be noted that the People, inexplicably, contend that this criminal prosecution did not commence until December 4, 2015, when the defendant was "arraigned on the accusatory instrument". The People have not provided the court with any legal authority supporting this proposition.
On December 4, 2015, the misdemeanor complaint was deemed converted and the case was adjourned to February 9, 2016 for discovery. The People were ready for trial. 0 days are included (CPL 30.30[4][a] [period for discovery excluded]; CPL 30.30[4][f] [time where the defendant is without counsel excludable]; and People v. Dorilas, 19 Misc.3d 75, 76–7 [App Term, 2d Dept 2008] [period of adjournment for discovery by stipulation and pretrial discovery excludable] ).
On February 9, 2016, the defendant did not appear in court. A bench warrant was stayed. The case was adjourned to March 15, 2016. 0 days are included (CPL 30.30[4][c][i] [period of delay resulting from the defendant's absence is excludable] ).
On March 15, 2016, the People were ready for trial. The case was adjourned to April 11, 2016 for the defendant to be placed in Queens Misdemeanor Treatment Court. The defendant concedes that this adjournment was on consent. 0 days are included (CPL 30.30[4][b] [period of delay resulting from a continuance with the defendant's consent is excludable] ).
On April 11, 2016, the case was adjourned to May 2, 2016 for the results of the defendant's screening assessment. 0 days are included (CPL 30.30[4][a] [period of delay resulting from other proceedings concerning the defendant is excludable).
On May 2, 2016, the defendant was found ineligible for Queens Misdemeanor Treatment Court and the case was adjourned to May 24, 2016 for jury trial. There is no indication that the People were ready for trial on this date. 22 days are included (People v. Hamilton, 46 N.Y.2d 932 [1979] [record does not reflect that the People were actually ready for trial]; see People v. Cortes, 80 N.Y.2d 201, 215–16 [1992] [it is the People's burden to make the record sufficiently clear as to whether the People should be charged]; see also People v. Liotta, 79 N.Y.2d 841, 843 [1992] [same] ).
On May 24, 2016, the People were not ready. The case was adjourned to July 18, 2016 for jury trial. The People were directed to file a certificate of readiness. The People served and filed an off-calendar statement of readiness on May 31, 2016. 7 days are included (People v. Stirrup, 91 N.Y.2d 434, 437–38 [1998] [filing a certificate of readiness tolls the speedy-trial clock from running for the remainder of the adjournment period] ).
On July 18, 2016, the People were ready for trial. The defendant requested a motion schedule. The court ordered the defendant to serve and file his motion to dismiss by August 1, 2016 with the People the oppose by August 17, 2016. The case was adjourned to September 21, 2016 for decision. 0 days are included (CPL 30.30[4][a] [time for pretrial motions excludable] ).
Based on this analysis, the total chargeable time is 185 days. Because this exceeds the 90–day allotment (see CPL 30.30[1][b] ), the defendant's motion to dismiss on speedy-trial grounds, pursuant to CPL 170.30(1)(e) and 30.30(1)(b), is granted.
The foregoing constitutes the decision and order of the Court.