Opinion
No. 2010BX061096.
2012-07-12
The PEOPLE of the State of New York, v. Osvaldo VELA, Defendant.
Steven Banks, The Legal Aid Society, New York (Larissa Rouse of counsel), for the Defendant. Robert Johnson, District Attorney, Bronx County, (Meghan Connelly of counsel), for the People.
Steven Banks, The Legal Aid Society, New York (Larissa Rouse of counsel), for the Defendant. Robert Johnson, District Attorney, Bronx County, (Meghan Connelly of counsel), for the People.
GIA L. MORRIS, J.
Defendant Osvaldo Vela, by Notice of Motion dated May 16, 2012 moves for dismissal of the accusatory instrument filed against him on the grounds that the People failed to timely proceed to trial as required under N.Y. C.P.L. § 30.30. The People oppose the instant motion, contending that speedy trial time has not elapsed pursuant to N.Y. C.P.L. § 30.30. Defendant further moves for reservation of rights pursuant to N.Y. C.P.L. § 255.20(2) to make additional pre-trial motions as appropriate.
I. Procedural History
Under Docket No.2010BX061096, defendant was arrested on September 25, 2010, and charged with Obstructing Governmental Administration in the Second Degree (N.Y. Penal Law § 195.05); Harassment in the Second Degree (N.Y. Penal Law § 240.26(1)); and Disorderly Conduct (N.Y. Penal Law § 240.20(6)). Defendant was arraigned on September 26, 2010, at which time the People stated ready in regards to count three (3), Disorderly Conduct. The People stated not ready with respect to the remaining counts one (1) and two (2); Obstructing Governmental Administration in the Second Degree and Harassment in the Second Degree, as a supporting deposition was needed to convert those counts into an information in accordance with N.Y. C.P.L. § 100.15.
The defendant does not contest that the People stated ready at arraignment on the Disorderly Conduct charge.
Since the arraignment on the instant matter, this case has been calendared twelve times for various reasons, spanning over one and a half years. On April 6, 2011, the Honorable Judge Adler, on motion by the People, dismissed counts one and two of the complaint filed against the defendant on the grounds that the People failed to meet their speedy trial burden pursuant to N.Y. C.P.L. § 30.30. Accordingly, the defendant is only charged with Disorderly Conduct, in violation of N.Y. Penal Law § 240.20(6).
With respect to the Disorderly Conduct charge, the Defendant contends that 147 chargeable days have elapsed and therefore the count must be dismissed pursuant to N.Y. C.P.L. § 30.30. In contrast, the People contend that only eleven chargeable days have elapsed under N.Y. C.P.L. § 30.30. See Notice of Motion dated May 16, 2012; Affirmation in Opposition to Defendant's Notice of Motion dated June 6, 2012. The majority of the chargeable days that are in dispute stem from the period of time between the defendant's arraignment on September 26, 2010, until January 26, 2011 (a total of 122 days), when the matter was adjourned for the filing of a speedy trial motion as to counts one and two.
II. Discussion
Under New York's Criminal Procedure law, the People have a proscribed period of time to bring a defendant to trial based upon the type of crime the defendant is accused to have committed. SeeN.Y. C.P.L. § 30.30; People v. Cooper, 750 N.Y.S.2D 258, 259, 98 N.Y.2d 541, 543 (2002)(“Under CPL 30.30(1), the People have six months to announce readiness in a felony prosecution [and] 90 days when the most serious offense is a class A misdemeanor[.]”). This time begins from the commencement of a criminal action. Id. Failure to meet the statutory time period mandates dismissal of an accusatory instrument. Id. In the instant matter, because the defendant was originally charged with a class “A” misdemeanor and related charges, the applicable speedy trial time is 90 days from the filing of the accusatory instrument. NY C.P.L. § 30.30; Cooper, 750 N.Y.S2d at 259, 98 N.Y.2d at 543.
The crux of the defendant's argument is that the period of time from the defendant's arraignment on September 26, 2010 until January 26, 2011 when the matter was adjourned for the filing of motions, should be charged to the People, because “the Legislature did not intent [sic] for the speedy trial “readiness” analysis to be divisible by counts.” See Memorandum of Law dated May 16, 2012, ¶ 9. Defendant relies on People v. Peluso to support the contention that the People cannot be ready for trial while some counts of a single accusatory instrument are unconverted. See People v. Peluso, 745 N.Y.S.2d 845, 192 Misc.2d 33 (Crim Ct Kings Co 2002).
Notwithstanding the lower court's decision in Peluso, the decisions by the Court of Appeals in People v. Dion, and the Appellate Term, First Department in People v. Brooks, both binding on this court, clearly rejected this argument. People v. Dion, 93 N.Y.2d 893, 894, 689 N.Y.S.2d 685 (1999); People v. Brooks, 190 Misc.2d 247, 251, 736 N.Y.S.2d 823, 827 (App Term, 1st Dept 2001). Specifically, in Brooks, the Appellate term, First Department, held:
The Court of Appeals flatly rejected defendant's CPL 30.30 claim, with language strongly supporting, if not expressly recognizing the “severability” concept here at issue: “[W]hen the People answered ready on May 14, 1996, their readiness included the misdemeanor charge of petit larceny. That unreduced charge was unaffected by the procedural mechanics of CPL 180.50” ... Similarly in the matter now before us, the People's November 16, 1998 readiness statement included the weapon possession and related charges now pending, charges which were “unaffected” by the court's narrow jurisdictional ruling targeted only to the ultimately abandoned criminal impersonation charge.
Brooks, 190 Misc.2d at 251, 736 N.Y.S.2d at 827 (emphasis supplied) (quoting Dion, 93 N.Y.2d at 894, 689 N.Y.S.2d at 685);see also People v. Castro, N.Y. Slip Op. 50084(U), 2001 WL 1691976 (App Term 1st Dept 2001) (People's stated intention to file a corroborating affidavit on an unrelated count did not effect readiness as to converted count); People v. Gray, 801 N.Y.S.2d 239, 7 Misc.3d 127(A) (App Term 2d Dept 2004)(same); People v. Minor, 549 N.Y.S.2d 897, 898, 144 Misc.2d 846,847 (App Term 2d Dept 1989)(“the clear import of the statutory language is that the People's failure to timely proceed on one count of an accusatory instrument does not necessarily adhere to the remaining counts upon which the People could be ready for trial.”).
In accordance with the significant appellate authority pertaining to this issue, this Court finds that the People's statement of readiness at arraignment as to Count 3, the only remaining count on the accusatory instrument, tolled the speedy trial clock as to that count. Dion, 93 N.Y.2d 893, 894, 689 N.Y.S.2d 685;Brooks, 190 Misc.2d at 251, 736 N.Y.S.2d at 827. As such, the period of time from September 26, 2010, through January 26, 2011, is not chargeable to the People. Once this period is excluded pursuant to N.Y. C.P.L. § 30.30, the chargeable time, even utilizing the calculations set forth in the defendant's moving papers, does not exceed 90 days.
The remaining disputed speedy trial time, even under the defendant's calculations, would only amount to a total of 25 chargeable days. As such, this Court declines to address the issue as to the remaining disputed time, and instead defers that determination to the appropriate trial court, should a subsequent speedy trial motion be filed in this matter.
Accordingly, the defendant's motion to dismiss the complaint pursuant to N.Y. C.P.L. § 30.30 is denied.
III. Reservation of Rights
The defendant's motion to reserve the right to make additional motions or to amend or supplement this motion is denied, with the following exceptions: if, as a result of the hearings held in this case, additional information is disclosed to the defendant, the defendant may make additional motions as appropriate. Further, if the People fail to disclose information or if information disclosed does not satisfy defendant's request for information required by law to be disclosed, then the defendant may make the appropriate motion to compel disclosure. In that motion, the defendant must specify (1) the item(s) of information which the District Attorney has not disclosed, (2) why such information is relevant and applicable to this case, and (3) the provision of law or authority requiring disclosure of such information.
This constitutes the Decision and Order of the Court.
SO ORDERED: