Opinion
2007NY058725.
Decided October 8, 2008.
Steven Banks, Esq., The Legal Aid Society (Allison Lewis of counsel), for the Defendant.
Robert M. Morgenthau, District Attorney, New York County (Larken Kade of counsel), for the People.
A certificate of trial readiness served on prior defense counsel is ineffective to toll the speedy-trial clock.
Charged by information with resisting arrest; obstructing governmental administration in the second degree; attempted tampering with physical evidence; disorderly conduct; and attempted criminal possession of marijuana in the fifth degree, defendant moves to dismiss on the ground that his statutory right to a speedy trial has, he contends, been violated. When, as here, a defendant is accused of a misdemeanor punishable by a sentence of more than three months in jail, the People must be ready for trial within 90 days of the commencement of the criminal action ( see CPL 30.30 [b]), minus any excludable periods ( see CPL 30.30; People v Cortes, 80 NY2d 201, 208).
More precisely, when, as in this case, periods of both prereadiness and postreadiness delay are at issue, the determination whether the People have satisfied their statutory speedy-trial obligation "is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" ( Cortes, 80 NY2d at 208).
On August 2, 2007, defendant, represented by an attorney from New York County Defender Services, was arraigned, and the case was adjourned to August 13, 2007, for trial. Inasmuch as defendant did not seek to make pretrial motions, none of this time is excludable ( see People v Schneck, 20 Misc 3d 1146 [A], 2008 NY Slip Op 51892[U] [Crim Ct, NY County 2008]; cf. CPL 30.30 [a] [period of delay resulting from pretrial motions excludable]). Thus, 11 days are chargeable to the People.
On August 13, the People were not ready for trial, and the case was adjourned to September 11. This 29-day period is chargeable to the People.
On September 11, New York County Defender Services was relieved as defendant's attorney, and the court assigned the Legal Aid Society as defense counsel. The People were not ready for trial, and the case was adjourned to October 17, 2007.
On September 20, 2007, the People filed with the court a statement certifying their readiness for trial, but served a copy of such statement, by mail, on New York County Defender Services. Although defendant's Legal Aid attorney did not file a notice of appearance in the court file until September 18, the court's assignment of new counsel, made on the record and in the presence of the People, sufficed to put the People on notice that Legal Aid represented defendant as of September 11.
Although this certificate and its accompanying affidavit of service were both dated September 19, the official court stamp reflects that they were not actually filed with or received by the court until September 20. A valid certificate of readiness is effective as of the date it is filed with the court (as long as defense counsel is promptly notified) ( see People v Anderson, 252 AD2d 399, 400 [1st Dept 1998]).
An off-calendar, written notice of readiness must be "sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record" ( People v Kendzia, 64 NY2d 331, 337). Since the September 20 certificate of readiness was served on the wrong defense counsel, it was ineffective ( see People v Chittumuri, 189 Misc 2d 743 [Crim Ct, Queens County 2001] [service on prior counsel ineffective]; People v Starkey, 4 Misc 3d 1002 [A], 2004 NY Slip Op 50603[U], *1 [Sup Ct, Kings County 2004] [defense counsel had moved offices; service at old address ineffective]; cf. People v Jordan, 153 AD2d 263 [2d Dept 1990] [notice of defendant's right to testify before grand jury served on prior defense counsel; notice inadequate]).
The People presumably recognized the consequence of their error, because on October 2, 2007, before the case had again appeared on the court's calendar, they filed a second statement of readiness, this time properly serving it on the Legal Aid Society. This second statement was effective to stop the clock. Accordingly, the 21-day period from September 11, 2007, to October 2, 2007, is chargeable to the People.
On October 17, the People were not ready for trial, and requested one week. Because of court congestion, the case was adjourned to November 14, 2007. A period of 7 days is chargeable to the People ( see People v Bailey, 221 AD2d 296, 296 [1st Dept 1995]; People ex rel. Sykes v Mitchell, 184 AD2d 466 [1st Dept 1992]; see also Cortes, 80 NY2d at 208 [in the context of postreadiness delay, the People may be charged only with those periods actually attributable to them and ineligible for an exclusion]).
On November 14, the People were not ready for trial, and requested one week; the case was adjourned to January 23, 2008. Thus, 7 days are chargeable to the People.
On January 23, 2008, the People were not ready, and requested an adjournment to January 28, 2008. Defendant did not appear, however, and a bench warrant was issued. The period until defendant's return on the warrant is excludable ( see CPL 30.30 [c] [ii]).
On January 24, 2008, defendant returned on the warrant, and the case was adjourned to March 10, 2008, for trial. This entire adjournment is excludable ( see People v Muhanimac, 181 AD2d 464, 465-466 [1st Dept 1992] [People entitled to a reasonable time to prepare for trial after a defendant is returned on a bench warrant]; see also People v Jones, 19 Misc 3d 1126 [A], 2008 NY Slip Op 50884[U], *6-*7 [Crim Ct, NY County 2008] [concluding that courts are ill-equipped to determine how much time the People reasonably need to get ready for trial in any particular case, or to thereby apportion segments of the delay period between the People and the defendant; entire adjournment "resulting from" defendant's actions excludable (quoting CPL 30.30)]; accord People v Asmal-Aucapina, 21 Misc 3d 168, 2008 NY Slip Op 28283, *3-*4 n 3 [Crim Ct, NY County 2008]).
In any event, even if, as a general proposition, the court were able to determine how much time the People need to prepare for trial, and were to exclude only some arbitrary portion of the adjournment as presumptively reasonable — say, 14 days, or 21 days ( but cf. People v Diaz, 275 AD2d 652, 653 [1st Dept 2000] [28-day adjournment excludable]; People v Chambers, 226 AD2d 284, 284-285 [1st Dept 1996] [29 days]; People v Heine, 238 AD2d 212, 212 [1st Dept 1997] [32 days]; People v Moolenaar, 262 AD2d 60, 60 [1st Dept 1999] [32 days]; People v Silas, 233 AD2d 103, 103 [1st Dept 1996] [34 days]; People v Wells , 16 AD3d 174 , 174 [1st Dept 2005] [35 days]; People v Reed , 19 AD3d 312 , 314-315 [1st Dept 2005] [35 days]; People v Perez-Cortes, NYLJ, Mar. 3, 1999, at 26, col 2 [App Term, 1st Dept] [42 days]) — in this case, the People, on January 23, requested an adjournment to January 28. Thus, had defendant appeared in court when required, and the case been adjourned to March 10 for trial, the People would have been charged only until January 28 — well before the expiration of any 14-day or 21-day period commencing when defendant returned on the warrant. To charge the People with the time from a "reasonable period" after January 24, until March 10, would reward defendant — and penalize the prosecution — for defendant's failure to appear. No rational reading of CPL 30.30 supports that result.
On March 10, the People were not ready, and the case was adjourned to June 9, for trial. On March 11, the People filed and served a certificate of readiness. Thus, 1 day is chargeable to the People ( see People v Stirrup, 91 NY2d 434, 440).
On June 9, the People were not ready, and the case was adjourned to June 18, at the People's request. Accordingly, 9 days are chargeable to the People.
On June 18, the People were again not ready, and requested an adjournment to June 25. The case was adjourned to August 13, 2008; thus, 7 days are chargeable to the People.
On August 13, the People answered ready for trial. Defendant filed this speedy-trial motion, and the case was adjourned to October 20, 2008, for decision. (The People's response was due October 3, and defendant's reply, October 14.) This adjournment is excludable ( see CPL 30.30 [a]; People v Shannon, 143 AD2d 572, 573 [1st Dept 1988]).
Accordingly, since 92 chargeable days have elapsed, defendant's motion to dismiss is granted.
This opinion shall constitute the decision and order of the court.