Opinion
Indictment No. 2021-210
11-22-2021
The PEOPLE of the State of New York v. Michael TABACK, Defendant.
DAVID M. HOOVLER, Orange County District Attorney, Attorneys for Plaintiff, 255-275 Main Street, 4th Floor, Goshen, New York 10924, Attn: Assistant District Attorney Richard J. Giordano LARKIN INGRASSIA L.L.P., Attorney for Defendant Michael Taback, 356 Meadow Avenue, Newburgh, New York 12550, Attn: John Ingrassia, Esq.
DAVID M. HOOVLER, Orange County District Attorney, Attorneys for Plaintiff, 255-275 Main Street, 4th Floor, Goshen, New York 10924, Attn: Assistant District Attorney Richard J. Giordano
LARKIN INGRASSIA L.L.P., Attorney for Defendant Michael Taback, 356 Meadow Avenue, Newburgh, New York 12550, Attn: John Ingrassia, Esq.
Robert J. Prisco, J.
Defendant MICHAEL TABACK is charged by Indictment Number 2021-210 with one count of Assault in the First Degree pursuant to Penal Law [PL] § 120.10 (1) [First Count] and one count of Assault in the Second Degree pursuant to PL § 120.05 (2) [Second Count]. The charges pertain to Defendant's alleged shooting and pistol whipping of an individual at approximately 11:23 p.m. on October 16, 2020, in the vicinity of the Golden Rail Ale House, located at 29 Old North Plank Road in the Town of Newburgh.
On July 6, 2021, Defendant was arraigned by this Court on the charges contained in Indictment Number 2021-210 and the Court acknowledged receipt of the People's Statement of Readiness which has, inter alia, a Notice and Disclosure Form, a Certificate of Compliance dated July 6, 2021, a three-page Index and twenty-three "Compliance Report for Discovery Package" pages identifying items and materials that were provided and made available to defense counsel, and three "eDiscovery Instructions" pages attached thereto. Within the Statement of Readiness and the Certificate of Compliance, the People aver that they "are in all respects ready for trial" and they so announced at Defendant's arraignment in response to this Court's inquiry of actual readiness (see CPL § 30.30 (5) ).
The Court received Defendant's Notice of Motion, accompanying Affirmation and nine exhibit attachments, seeking various forms of judicial intervention and relief including, but not limited to, dismissal of the indictment on the ground that the defendant's right to a speedy trial pursuant to CPL §§ 210.20 (1) (g) and 30.30 (1) (a) was violated.
The Court thereafter received the People's Supplemental Certificate of Compliance, and an attached one-page Index identifying ten additional items and materials that were provided and made available to defense counsel. The Supplemental Certificate of Compliance sets forth that "[t]he People are in all respects ready for trial." The People filed an Affirmation in Response with a copy of Executive Order 202.87 attached thereto, an unredacted certified copy of the stenographic transcript of the June 2, 2021 Grand Jury proceeding, and twelve Grand Jury Exhibits.
The People's Affirmation in Response includes a "Statement of Readiness", in which it is asserted that "THE PEOPLE ARE IN ALL RESPECTS READY FOR TRIAL IN THE ABOVE-CAPTIONED MATTER" (see Page 20).
Defendant subsequently filed a Reply Affirmation in which, inter alia, he again seeks dismissal of the indictment on the grounds that his right to a speedy trial pursuant to CPL §§ 210.20 (1) (g) and 30.30 (1) (a) was violated and argues that the People's reliance upon Executive Order 202.87 to toll the time periods of CPL § 30.30 is misplaced. Five additional exhibit attachments are attached to Defendant's Reply Affirmation.
After consideration of the above referenced submissions, the Court decides Defendant Taback's motion as follows:
DEFENDANT'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS IS GRANTED.
Pursuant to CPL§§ 210.20 (1) (g) and 30.30 (1) (a), Defendant requests that the Court dismiss the charges filed against him because "he has been denied a speedy trial." Specifically, Defendant contends that the "eight months and nineteen days of time" from October 17, 2020 (the date that the felony complaint was filed) through July 6, 2021 (the date that the People filed the Certificate of Compliance and announced their readiness for trial) are chargeable to the People.
There are 262 days between October 17, 2020 and July 6, 2021.
In response, the People contend that Defendant's right to a speedy trial has not been denied due to former New York State Governor Andrew Cuomo's issuance of Executive Order 202.87, which, they assert, suspended CPL § 30.30 from December 30, 2020, until it was rescinded by Executive Order 202.106 on May 23, 2021. While conceding that the 75 days from October 17, 2020 (the date that the felony complaint was filed) through December 30, 2020 (the effective date of Executive Order 202.87) and the 43 days from May 23, 2021 (the end date of Executive Order 202.87) through July 6, 2021 (the date that the People filed the Certificate of Compliance and announced their readiness for trial) are chargeable to them, the People aver that the 144 days from December 30, 2020 through May 23, 2021 (the applicable dates of Executive Order 202.87) are excludable and not chargeable to them.
"Pursuant to CPL § 30.30 (1) (a), the People must be ready for trial within six months of the commencement of a criminal action accusing a defendant of a felony offense" ( People v. Clarke , 28 N.Y.3d 48, 52, 41 N.Y.S.3d 200, 63 N.E.3d 1144 [2016], quoting People v. Carter, 91 N.Y.2d 795, 798, 676 N.Y.S.2d 523, 699 N.E.2d 35 [1998] ; see People v. Price , 14 N.Y.3d 61, 896 N.Y.S.2d 719, 923 N.E.2d 1107 [2010] ; People v. Bowman , 197 A.D.3d 714, 714, 150 N.Y.S.3d 585 [2d Dept. 2021] ; People v. Stiebritz , 192 A.D.3d 705, 705, 139 N.Y.S.3d 567 [2d Dept. 2021] ; People v. Connell , 185 A.D.3d 1048, 1049, 126 N.Y.S.3d 372 [2d Dept. 2020] ; People v. Huger , 167 A.D.3d 1042, 1042, 91 N.Y.S.3d 161 [2d Dept. 2018], lv. denied 33 N.Y.3d 949, 100 N.Y.S.3d 206, 123 N.E.3d 865 [2019] ), "not including excludable periods" ( People v. Clinkscales , 171 A.D.3d 1086, 1087, 98 N.Y.S.3d 243 [2d Dept. 2019] ; see People v. Huger , 167 A.D.3d at 1042, 91 N.Y.S.3d 161 ; People v. Cox , 161 A.D.3d 1100, 1100, 77 N.Y.S.3d 455 [2d Dept. 2018] ; CPL § 30.30 (4) ). "The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded" ( People v. Brown , 28 N.Y.3d 392, 403, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016], quoting People v. Price , 14 N.Y.3d 61, 63, 896 N.Y.S.2d 719, 923 N.E.2d 1107 [2010] ). "Whether the People have satisfied [their] obligation is generally determined by computing the time elapsed between the [commencement of the criminal action] 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" ( People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ; see People v. Carter, 91 N.Y.2d at 799, 676 N.Y.S.2d 523, 699 N.E.2d 35 ; People v. Clinkscales , 171 A.D.3d at 1087, 98 N.Y.S.3d 243 ; People v. Huger , 167 A.D.3d at 1042, 91 N.Y.S.3d 161 : People v. Lynch, 103 A.D.3d 919, 920, 962 N.Y.S.2d 241 [2d Dept. 2013], lv. denied 21 N.Y.3d 1017, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013] ; People v. Headley , 100 A.D.3d 775, 776, 954 N.Y.S.2d 121 [2d Dept. 2012] ).
A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court (see CPL § 1.20 (17) ), which includes a felony complaint (see CPL § 1.20 (1) ; People v. Huger , 167 A.D.3d at 1042, 91 N.Y.S.3d 161 ; People v. Cox , 161 A.D.3d at 1100, 77 N.Y.S.3d 455 ; People v. Sant , 120 A.D.3d 517, 518, 990 N.Y.S.2d 630 [2d Dept. 2014] ). On October 17, 2020, a felony complaint charging Defendant with Assault in the First Degree was filed and he was virtually arraigned thereon by a Justice of the New Windsor Town Court on that same date. Thus, the criminal action against Defendant and the speedy trial clock commenced on October 17, 2020, and, absent excludable delay, the People were required to be ready for trial within 182 days thereafter.
There are 182 days between October 17, 2020 and April 17, 2021.
On March 20, 2020, due to the COVID-19 health crisis, former New York State Governor Andrew Cuomo issued Executive Order 202.8, which, inter alia, limited court operations to essential matters, and unconditionally suspended CPL § 30.30 and tolled its speedy trial calculations. The suspension of CPL § 30.30 and the tolling of its speedy trial calculations remained in effect through a series of Executive Order extensions until October 4, 2020, when they were lifted with the Governor's issuance of Executive Order 202.67.
As the filing of the felony complaint charging the defendant in this case occurred thirteen days after the issuance of Executive Order 202.67, there are indisputably no excludable time periods during the 75 days from October 17, 2020 through December 30, 2020 and such are chargeable to the People.
On December 30, 2020, Executive Order 202.87 suspended CPL §§ 30.30 and 190.80 "to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and thereafter shall not be tolled" (emphasis added). This suspension remained in effect until May 23, 2021, when it was rescinded by the issuance of Executive Order 202.106.
In the instant case, Defendant was arraigned on the charges contained in Indictment Number 2021-210 on July 6, 2021, and the People filed and served a "Statement of Readiness" and a Certificate of Compliance on that date asserting that "[t]he People are in all respects ready for trial." The People's Certificate of Compliance certifies that, "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery under CPL § 245.20 (1), the People have disclosed and made available to the defendant all known material and information that is subject to discovery." Attached to the Certificate of Compliance is a three-page Index and twenty-three "Compliance Report for Discovery Package" pages identifying items and materials that were provided and made available to defense counsel, and three "eDiscovery Instructions" pages. Without considering the merits of Defendant's motion to strike the Certificate of Compliance and assuming for the sake of the instant speedy trial argument that the People's statement of readiness in response to this Court's inquiry of actual readiness was not illusory (see People v. Maslowski , 187 A.D.3d 1211, 1214, 133 N.Y.S.3d 278 [2d Dept. 2020], lv. denied 37 N.Y.3d 973, 150 N.Y.S.3d 696, 172 N.E.3d 808 [2021] ), it is irrefutable that there are no excludable time periods during the 43 days from May 23, 2021 through July 6, 2021, and such are likewise chargeable to the People.
Accordingly, as 118 days have been charged to the People under the two time periods discussed above and as they were required to announce their readiness within 182 days of October 17, 2020, the People's delay in doing so, barring excludable delay, must not exceed 64 days.
The People rely upon Executive Order 202.87 as the basis of their argument that CPL§ 30.30 was tolled from December 30, 2020 through May 23, 2021 and that the 144 days within that time period are, thereby, excludable.
"[T]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used" ( People v. Williams, 19 N.Y.3d 100, 103, 945 N.Y.S.2d 629, 968 N.E.2d 983 [2012], quoting People v. Finnegan, 85 N.Y.2d 53, 58, 623 N.Y.S.2d 546, 647 N.E.2d 758 [1995] ; see People v. Badji , 36 N.Y.3d 393, 399, 142 N.Y.S.3d 128, 165 N.E.3d 1068 [2021] ; People v. Middlebrooks , 25 N.Y.3d 516, 523, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015] ; People v. Brown , 25 N.Y.3d 247, 250, 10 N.Y.S.3d 500, 32 N.E.3d 935 [2015] ; Moore v. City of New York , 197 A.D.3d 93, 95, 151 N.Y.S.3d 682 [2d Dept. 2021] ). In interpreting the language of Executive Order 202.87, it is clear that the use of the phrase "to the extent necessary" is qualifying language that must be narrowly construed, as it is language that was not included in Executive Order 202.8, which initially tolled CPL § 30.30.
Here, the People have not provided the Court with any information as to why it was "necessary" for the time period of December 30, 2020 through May 23, 2021 to be tolled. This Court takes notice of the fact that an Orange County Grand Jury commenced hearing cases on October 14, 2020, three days before the felony complaint in this matter was filed, and the Court is unaware of a "necessary" pausing of subsequent Grand Jury presentations after that date. The People have also not provided the Court with any information as to why it was "necessary" for this matter to not be presented to a Grand Jury until June 2, 2021, 228 days from the filing of the felony complaint. Accordingly, as there were no "necessary" excludable time periods from December 30, 2020 through May 23, 2021, the People are charged with the 144 days thereof.
As per the Orange County Commissioner of Jurors.
Pursuant to Defendant's Freedom of Information Law (FOIL) request, Defendant claims that the Orange County Grand Jury was continually in session from "October 19, 2020 through and including the present date" and that "131 indictments were voted on and filed by Orange County Grand Juries as a result of the Orange County District Attorney presenting numerous cases to Orange County Grand Juries."
Therefore, as 262 days elapsed between the commencement of the criminal action against the defendant and the People's declaration of readiness, in contravention of the 182 days permitted by CPL § 30.30 in this case, and as there are no discernible periods of delay that are excludable under the terms of that statute, Defendant's motion to dismiss Indictment 2021-210 on the ground that he was denied of his right to a speedy trial is granted.
In light of this determination, the Court need not address Defendant's remaining contentions.
The foregoing constitutes the Decision and Order of this Court.