Opinion
10-72.
Decided February 2, 2011.
LORI RIEMAN, ESQ., District Attorney, Cattaraugus County, New York, For the People.
STEVEN A. WRIGHT, ESQ., Olean, New York, for the Defendant.
DECISION
On December 14, 2009, information's were filed charging defendant with aggravated harassment in the second degree and two counts of disorderly conduct. This court, sitting as the Town of Yorkshire, issued an arrest warrant on that date. Defendant was arrested on December 16, 2009, and new charges of assault in the second degree (two counts), resisting arrest, and disorderly conduct were filed on that date.
Defendant was arraigned in the Town of Freedom on December 16, 2009, bail was set and the case was apparently sent to the Town of Yorkshire, the correct venue, for further proceedings. On December 21, 2009, the case was divested to County Court.
An indictment and statement of readiness were filed on May 6, 2010. The indictment charged defendant with aggravated harassment in the second degree and two counts of disorderly conduct from the December 14, 2009 incident, and assault second, resisting arrest, disorderly conduct and harassment second from the December 16, 2009 incident. Defendant was arraigned on May 24, 2010, and the case was adjourned for pretrial motions.
Defendant filed an omnibus motion on July 12, 2010, which sought, among other things, court inspection of the grand jury minutes. On October 7, 2010, the People filed an answering affidavit and on the same date, forwarded the grand jury minutes to the court. On October 18, 2010, defendant filed a motion to dismiss on 30.30 grounds. Relying on several cases holding that the People's failure to deliver the grand jury minutes to the court is chargeable to them for 30.30 purposes, defendant contends that the combined periods of pre-readiness and post-readiness delay exceed the statutory period.
The People's opposing affidavit contends that the motion "borders on frivolous" and relies solely on People v. Albrechtsen ( 1 Misc 3d 703, 764 NYS2d 612 [Greene Co Court]) in arguing that the motion should be denied.
The court scheduled a hearing for January 10, 2011. On that date, the parties stipulated into evidence an affidavit of the grand jury stenographer which stated that the grand jury proceeding was held on April 22, 2010, and the transcript was mailed to the District Attorney on May 4, 2010. At the District Attorney's request, the parties were then given two weeks to submit memoranda. Defense counsel filed his on January 24, 2010. That same day, the District Attorney advised the court and defense counsel that she did not intend to submit anything further.
In this case, the People had 182 days in which to announce their readiness for trial ( People v. Cortes, 80 NY2d 201, 590 NYS2d 9; People v. Militello, 199 AD2d 1053, 606 NYS2d 115 [4th Dept 1993]; People v. Respress, 195 AD2d 1053, 600 NYS2d 535 [4th Dept 1993]; People v. Ramos , 48 AD3d 984 , 851 NYS2d 724 [3d Dept 2008], lv denied 10 NY2d 938, 862 NYS2d 345).
It appears that the period between the filing of the felony complaint and the divestiture to County Court is excludable although neither party specifically addressed this period. However, the period between December 21, 2009, when the case was divested, and May 6, 2010, when the People filed a statement of readiness, a total of 136 days, is chargeable to the People.
Generally, periods of delay occurring after the People announce their readiness are not chargeable to the People. For example, the People's delay in providing lab reports, Rosario materials, or a bill of particulars is not chargeable to them for 30.30 purposes because the delay has no bearing on the People's readiness to proceed to trial ( People v. Anderson, 66 NY2d 529, 498 NYS2d 119; People v. Mitchell, 234 AD2d 965, 653 NYS2d 459 [4th Dept 1996], app denied 89 NY2d 1097, 660 NYS2d 391; People v. Roney, 222 AD2d 1114, 636 NYS2d 705 [4th Dept 2002]).
However, in People v. McKenna ( 76 NY2d 59, 556 NYS2d 514, the court applied a different rule when a defendant seeks court review of the grand jury minutes, which is a routine part of almost all omnibus motions ( see CPL 255.10). In McKenna, the defendant filed an omnibus motion on August 1, 1985, which included a request for court inspection of the grand jury minutes. The People filed a written response but did not supply the grand jury minutes to the court until January 3, 1986. The court charged the People with the entire period of delay from defendant's motion to delivery of the grand jury minutes to the court, holding that the "concededly negligent failure to provide the grand jury minutes for five months after the statement of readiness was made mandates dismissal of the indictment" ( Id., 76 NY2d at 64, 556 NYS2d at 516). Because the minutes were already in the People's possession when the motion was made, the entire period was chargeable to the People.
As I noted in the decision requiring a hearing, I am not smart enough to understand why the failure to supply materials that a defendant is constitutionally or statutorily entitled to is not chargeable to the People for speedy trial purposes, while the failure to supply grand jury minutes to the court for a review that is only statutorily required is chargeable to the People. However, that is unquestionably the law ( McKenna, 76 NY2d 59, 556 NYS2d 514; People v. Harris, 82 NY2d 409, 604 NYS2d 918; People v. England, 84 NY2d 1, 613 NYS2d 854; People v. Rosco, 210 AD2d 1003, 620 NYS2d 653 [4th Dept 1995], app denied 85 NY2d 913, 627 NYS2d 336).
To avoid the perceived harsh effects of these holdings, the District Attorney in Niagara County argued that the time to supply the grand jury minutes to the court should not begin to run until the court actually directs the prosecution to supply the minutes. That contention was rejected in People v. Harris ( 82 NY2d 409, 413, 604 NYS2d 918, 921), with the court holding that "where the People make no objection" to the motion to inspect the grand jury minutes, the "People's obligation to produce the grand jury minutes within a reasonable time begins to run from the date" the defense motion is made ( see also People v. Miller, 290 AD2d 814, 736 NYS2d 773 [3d Dept 2002], lv denied 98 NY2d 678, 746 NYS2d 467; People v. Mitchell, 276 AD2d 822, 714 NYS2d 163 [3d Dept 2000], lv denied 96 NY2d 803, 726 NYS2d 381).
The district attorney, during the argument of this 30.30 motion, threatened to oppose all motions for inspection of the grand jury minutes and require a court order to do so, on the theory that the 30.30 time would not begin until the court ordered their production. While this court will not dictate to anyone how their job should be done, that practice was specifically rejected by the Court of Appeals in Harris ( 82 NY2d at 412-413, 604 NY2d at 920-921).
How long do the People have to supply the grand jury minutes to the court? In McKenna, the minutes were already in the district attorney's possession when the motion to inspect was made and the court charged the People with the entire period between the motion and delivery of the minutes to the court. In Harris, however, the court at least held that the People had a reasonable period to produce the grand jury minutes, and affirmed an Appellate Division holding from this Department that 36 days was a reasonable period to supply the grand jury minutes to the court ( see also People v. Roscoe, 210 AD2d 1003, 620 NYS2d 635, app denied 85 NY2d 913, 627 NYS2d 336). The First Department appears to charge the People with any time beyond 36 days ( see People v. Laurence, 222 AD2d 279, 635 NYS2d 223, app denied 88 NY2d 881, 645 NYS2d 455), while the Third Department has allowed as much as 50 days ( People v. Dearstyne, 230 AD2d 953, 646 NYS2d 1000, app denied 89 NY2d 921, 654 NYS2d 723). However, the Third Department has also held that any time after the People receive the grand jury minutes from the stenographer will be chargeable to them ( People v. Del Valle, 234 AD2d 634, 651 NYS2d 626, app denied 89 NY2d 1010, 658 NYS2d 249; see also McKenna, 76 NY2d 59, 556 NYS2d 514).
With this authority in mind, we turn to the specific periods at issue here. Defendant's omnibus motion was filed on July 12, 1010. The parties stipulated that the grand jury minutes were sent to the District Attorney on May 4, 2010, more than two months before defendant filed his omnibus motion! Thus, they were in the District Attorney's possession at the time defendant made the motion for court inspection of them, and for whatever reason, were not supplied to the court until October 7, 2010. The court notes that the District Attorney's office is located about 40 feet from the clerk's office! This is precisely the same negligent failure to supply the minutes the court discussed in McKenna ( 76 NY2d 59, 556 NYS2d 514). Therefore, the entire period between July 12 and October 7, a period of 87 days, is chargeable to the People. This brings the total time chargeable to the People to 223 days, well beyond the permissible period.
However, the People hint at another argument, which I agree with, but the appellate courts do not. The omnibus motion was heard on July 26, 2010, and a Huntley hearing was scheduled for August 23 and rescheduled for October 4. Because time for pretrial motions and hearings is excludable from 30.30 calculations ( see CPL 30.30 [a]), the People contend they should only be chargeable with the time between October 4, when the Huntley hearing was held, and October 7, when the minutes were received by the court. That is clearly logical since the case could not proceed until the Huntley issue was decided and only three days elapsed between the Huntley hearing and delivery of the grand jury minutes to the court.
As I noted, while I agree with this contention, the appellate courts disagree. In People v. McKenna ( 76 NY2d 59, 556 NYS2d 514), there were numerous "calendar call" adjournments, which would usually be considered adjournments with the consent of the defense and therefore excludable ( see CPL 30.309 [4] [b]). Nonetheless, the entire period during which the grand jury minutes were not supplied was charged to the People.
Similarly, the Fourth Department has rejected this very argument on at least two occasions ( see People v. Rodriguez ( 214 AD2d 1010, 626 NYS2d 607; People v. Roscoe, 210 AD2d 1003, 620 NYS2d 635, lv denied 85 NY2d 913, 627 NYS2d 336). The Third Department agrees ( People v. Johnson , 42 AD3d 753 , 753, 839 NYS2d 346, 348, lv denied 9 NY3d 923, 844 NYS2d 178 [delay in providing grand jury minutes to court chargeable to People "[r]egardless of whether other motions are under consideration by the court"]). To the extent that People v. Albrechtsen ( 1 Misc 3d 703, 764 NYS2d 612 [Greene Co Ct]), is inconsistent with these cases, I am obligated to adhere to decisions from higher courts.
Accordingly, the court has no choice but to dismiss the indictment. Counsel for defendant should submit an order on notice.