Opinion
2013BX057847
02-13-2015
The People of the State of New York, v. Gideon Turton, Defendant.
The People — Robert T. Johnson, District Attorney, Bronx County, by Ray M. Serina, Assistant District Attorney Defendant — Oriana L. Carravetta, Kelly & Rubin, LLP
The People — Robert T. Johnson, District Attorney, Bronx County, by Ray M. Serina, Assistant District Attorney
Defendant — Oriana L. Carravetta, Kelly & Rubin, LLP
Armando Montano, J.
Defendant was originally charged on October 7, 2013 with the misdemeanors of Reckless Driving (VTL § 1212), and Driving While Intoxicated (VTL § 1192 (3)), and the traffic infraction of Driving While Ability Impaired by Alcohol (VTL § 1192(1)). By superseding complaint dated December 27, 2013, defendant was charged with the misdemeanors of Driving While Intoxicated (VTL §§ 1192(2), and (3)), Aggravated Driving While Intoxicated (VTL § 1192(2-a)(a)), and Reckless Driving (VTL § 1212), and the traffic infraction of Driving While Ability Impaired by Alcohol (VTL § 1192(1)). Defendant moves pursuant to CPL §§ 30.20 and 30.30 to dismiss the accusatory instrument on speedy trial grounds.
Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within 90 days of the commencement of a criminal action where the defendant is charged with one or more offenses, at least one of which is a misdemeanor punishable by sentence of imprisonment of more than three months, and none of which is a felony. For CPL § 30.30 purposes, in order for the People to be "ready for trial", the People must satisfy two elements. First, there must be a communication of readiness by the People which appears on the trial court's record by way of either a statement of readiness in open court or a written notice of readiness sent by the prosecutor to both defense counsel and the court clerk. People v. Kendzia, 64 NY2d 331 (1985). Second, the People must declare their readiness when there are in fact ready to proceed to trial. Id. at 337. "A statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock." People v. England, 84 NY2d 1, 4 (1994). The test is whether the People "have done all that is required of them to bring the case to a point where it may be tried." Id.
In order to satisfy his or her initial burden, the defendant must demonstrate that the People failed to declare their readiness within the statutorily prescribed time period. People v. Luperon, 85 NY2d 71 (1995). Once the defendant meets his or her initial burden, the onus is upon the People to establish sufficient excludable delay to withstand dismissal. People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980). "Whether the People have satisfied [their 30.30] 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." People v. Cortes, 80 NY2d 201, 208 (1992).
On October 7, 2013, defendant was arraigned on a misdemeanor complaint and released on his own recognizance. At arraignment, the People stated that they were not ready because they were in need of a supporting deposition. The case was adjourned to December 10, 2013 for conversion. On October 17, 2013, prior to the next adjourn date, the People filed with the Court and served on defense counsel an off-calendar statement of readiness and a supporting deposition. The People concede that for the for the time period from October 7, 2013, the date of the arraignment, to October 17, 2013, the date on which the People filed the statement of readiness and a supporting deposition, 10 days are chargeable to the People. Therefore, this Court charges the People with 10 days from October 7, 2013 to October 17, 2013. 10 days included.
On December 10, 2013, the case was adjourned to February 13, 2014 for motion practice. Delays caused by defense motions are excludable. See, People v. Bruno, 300 AD2d 93 (1st Dept. 2002); CPL § 30.30(4)(a). Therefore, the period of time from December 10, 2013 to February 13, 2014 is excludable. 0 days included.
On December 30, 2013, the People filed with the Court and served on defense counsel an off-calendar statement of readiness, a superseding information, and a laboratory report.
On February 13, 2014, neither defendant nor his counsel appeared in Court due to inclement weather. The Court action sheet also indicates that no motions had been filed. The case was thereafter adjourned to March 17, 2014. Since motion practice was pending, the period of time from February 13, 2014 to March 17, 2014 is excludable. CPL § 30.30(4)(a). 0 days included.
On March 17, 2014, defense counsel filed in Court an omnibus motion. The case was adjourned to May 6, 2014 for response and decision. Delays caused by defense motions are excludable. Bruno, supra; CPL § 30.30(4)(a). Therefore, the period of time from March 17, 2014 to May 6, 2014 is excludable. 0 days included.
On May 6, 2014, the Court granted defendant's motion for a Mapp/Dunaway/Darden/ Huntley hearing. The Court adjourned the case to June 24, 2014 for hearings and trials. The People are entitled to a reasonable adjournment in order to prepare for trial after motions are decided and a case is adjourned for trial. People v. Douglas, 156 AD2d 173 (1st Dept. 1989); People v. Green, 90 AD2d 705 (1st Dept. 1982). As such, the entire period from May 6, 2014 to June 24, 2014 is excludable. 0 days included.
Defendant argues that the People should be charged with three adjournments (from June 24, 2014 to August 12, 2014, August 12, 2014 to September 30, 2014, and September 30, 2014 to October 15, 2014) because the People were not ready for trial three successive times. In opposition, the People argue that on those three occasions, they provided specific reasons to the Court as to why they were not ready for trial. The People further assert that the requested adjourn dates were dates on which the People would have been ready to proceed if the case had been adjourned to the requested dates. Unless rebutted, the People argue that the adjournment requests and representations were truthful and accurate. In reply, defendant notes that the People have failed to address the fact that they never filed a statement of readiness at any time between June 24, 2014 and September 30, 2014.
A certificate of readiness is presumptively truthful and accurate. See, People v. Acosta, 249 AD2d 161 (1st Dept. 1998); People v. Miller, 113 AD3d 885 (3d Dept. 2014). "The People are not required to contact their witnesses on each and every adjourned date and neither statute nor case law requires that the People have the ability to produce their witnesses instantaneously in order for a statement of readiness to be valid." People v. Dushain, 247 AD2d 234, 236 (1st Dept. 1998) (internal citations omitted); see also, People v. Wilson, 86 NY2d 753 (1995); People v. Dauphin, 112 AD3d (1st Dept. 2013); People v. Camillo, 279 AD2d 236 (1st Dept. 2001). There is no requirement for the People to "repeatedly declare their continued readiness for speedy trial purposes." People v. Washington, 238 AD2d 263, 263 (1st Dept. 1997). Although subsequent requests for adjournments may raise questions as to the People's state of readiness at that time, they do not, standing alone, provide a reason to question the good faith of a prior statement of readiness. Camillo, 279 AD2d 326; People v. Robinson, 171 AD2d 475 (1st Dept. 1991).
On June 24, 2014, the case was on for hearings and trial. The People stated that they were not ready because the necessary police officer was unavailable. The People requested an adjourn date of June 26, 2014. The case was adjourned to August 12, 2014 for hearings and trial. In a post-readiness posture, the People are only charged with the amount of time requested. See, People v. Stirrup, 91 NY2d 434 (1998); People ex rel. Skyes v. Mitchell, 184 AD2d 466 (1st Dept. 1992). This Court charges the People with 2 days from June 24, 2014 to August 12, 2014. 2 days included.
On August 12, 2014, the case was on for hearings and trial. The People again indicated that they were not ready because the necessary officer was on his regular day off. The People requested an adjourn date of August 14, 2014. The case was thereafter adjourned to September 30, 2014. Being in a post-readiness posture, the People are only charged with the actual number of days requested. This Court charges the People with 2 days from August 12, 2014 to September 30, 2014. 2 days included.
On September 30, 2014, the case was on for hearings and trial. The People indicated that they were not ready because a necessary witness was unavailable. The People requested an adjourn date of October 6, 2014. The Court directed the People to file a statement of readiness and adjourned the case to November 12, 2014 for hearings and trial. On October 8, 2014, the People filed with the Court a statement of readiness although never serving defendant's counsel of record, Robert P. Kelly . Defendant was previously represented by Marne Lenox of the Bronx Defenders. However, the purported statement of readiness was served on Michael Ruben of the Legal Aid Society. Defendant asserts that the People are mistaken and a statement of readiness was filed on October 15, 2014 and not on October 8, 2014. The Court file does not indicate that a statement of readiness was filed on October 15, 2014. Moreover, there is no affidavit of service indicating when and to whom this purported statement of readiness was sent. Kendzia, supra, requires readiness to be communicated either by a statement of readiness by the People in open court or a written notice of readiness sent by the People to both defense counsel and the court clerk. Although a statement of readiness was filed with the Court on October 8, 2014, it was mailed to the wrong attorney. Therefore, the statement of readiness, filed on October 8, 2014, is a nullity. Similarly, the statement of readiness dated October 15, 2014 is also a nullity as there is no indication that it was filed with the Court and served on defense counsel. An invalid statement of readiness does not stop the running of the speedy trial clock. Consequently, the People are chargeable with a total of 43 days for the time period from September 30, 2014 to November 12, 2014. 43 days included.
Mr. Kelly filed a Notice of Appearance on December 10, 2013.
On November 12, 2014, the People indicated to the Court that they were ready. On that date, defendant filed the instant motion. The case was adjourned to December 8, 2014 for the People's response. On December 17, 2014, defendant filed reply papers in further support of the instant motion. The case was thereafter adjourned to February 16, 2015 for decision. Delays due to motion practice are excludable. See, Bruno, 300 AD2d 93; CPL § 30.30(4)(a).
Therefore, the period of time from November 12, 2014 to the present is excludable. 0 days included.
As stated above, this Court charges the People with 10 days for the period of time from October 7, 2013 to October 17, 2013, 2 days for the period of time from June 24, 2014 to August 12, 2014, 2 days for the period of time from August 12, 2014 to September 30, 2014, and 43 days for the period of time from September 30, 2014 to November 12, 2014. In sum, there is a total of 57 days of includable time. The People have not exceeded the statutorily prescribed time of 90 days. As such, defendant's motion pursuant to CPL § 30.30 is denied.
Defendant also moves to dismiss the accusatory instrument pursuant to CPL § 30.20; however, he fails to make any arguments in support. Defendant merely asserts in a conclusory fashion that he has been denied his constitutional right to a speedy trial. After reviewing the enumerated factors in People v. Taranovich, 37 NY2d 442 (1975) , this Court finds that defendant has not been deprived of his constitutional right to a speedy trial. Although more than one year has elapsed since the commencement of the instant action, only 57 days can be directly attributed to the People. Furthermore, defendant has not been incarcerated during the pendency of this action and the record is devoid of any indication of prejudice caused by the delay. Therefore, defendant's motion pursuant to CPL § 30.20 is denied.
"The following factors should be examined in balancing the merits of an assertion that there has been a denial of defendant's right to a speedy trial: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay." Taranovich, 37 NY2d at 445.
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Accordingly, the motion by defendant to dismiss the accusatory instrument on speedy trial grounds is denied.
This constitutes the decision and order of this Court.
Dated: February 13, 2015
Bronx, New York
_______________________________
Hon. Armando Montano