Opinion
No. 2014KN059036.
09-21-2015
The PEOPLE of the State of New York v. Jose VENTURA,, Defendant.
Daniel Ades, Brooklyn, NY, for Defendant. Kenneth Thompson, District Attorney, Kings County by Yasmin Dwedar Esq., Assistant District Attorney, Brooklyn, of Counsel, for the People.
Daniel Ades, Brooklyn, NY, for Defendant.
Kenneth Thompson, District Attorney, Kings County by Yasmin Dwedar Esq., Assistant District Attorney, Brooklyn, of Counsel, for the People.
ANDREW BORROK, J.
The instant matter is before the court because the defendant has moved to dismiss the charges pending against him on the grounds that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law (CPL) §§ 30.30(1)(b) and 170.30(1)(e), arguing that 221–days have elapsed that are chargeable as non-excludable time pursuant to CPL § 30.30(1)(b). The People oppose the motion contending that only 46 days have elapsed that are chargeable as non-excludable time. For the reasons set forth below, the court finds that 49 days are chargeable as non-excludable time. Accordingly, the defendant's motion is denied.
The Facts Relevant To Defendant's Speedy Trial Motion
On August 6, 2014, the defendant was arraigned. At arraignments, the defendant was charged with Assault in the Third Degree (PL § 120 .00[1] ), Attempted Assault in the Third Degree (PL § 110/120.00 [1] ), Menacing in the Third Degree (PL § 120.15) and Harassment in the Second Degree (PL § 240.26). The People indicated that they were not ready and the matter was adjourned until October 1, 2014 to AP2 for conversion.
Off calendar, on August 26, 2014, the People served and filed a statement of readiness (SOR) and a supporting deposition of Gurline Gore which supporting deposition converted all of the charges in the accusatory instrument. Accordingly, only the 19 day period from August 6, 2014 until August 26, 2014 is chargeable as non-excludable time for CPL § 30.30 purposes.
On October 1, 2014, the court instructed the People to serve and file Discovery by Stipulation (DBS) off-calendar and the matter was adjourned until November 19, 2014 for any necessary hearings and trial. The People are entitled to a reasonable adjournment to prepare for hearings and trial. People v. Greene, 223 A.D.2d 474 (1st Dept), appeal denied 88 N.Y.2d 879 (1996) ; People v. Hernandez, 268 A.D.2d 344 (1st Dept), lv denied 95 N.Y.2d 253 (2000); People v. Lucas, 25 Misc.3d 1213(A), (Crim Ct, Kings County 2009). Accordingly the entire time period between October 1, 2014 and November 19, 2014 is excludable time for CPL § 30.30 purposes.
On November 19, 2014, the People indicated that they were not ready for trial because the assigned assistant district attorney was out of the office and requested nine days. Post-readiness delays can be chargeable to the People only if they become unready. People v. Anderson, 66 N.Y.2d 529 (1985). When a case is in a post-readiness posture, for CPL § 30.30 purposes, specific adjournments requested by the People are chargeable as non-excludable time, but adjournments that extend beyond the specific adjournment requested by the People are excluded time. People v. Bruno, 300 A.D.2d 93, 95 (1st Dept), lv denied 100 N.Y.2d 641 (2003) ; People v. Dushain, 247 A.D.2d 234, 236 (1st Dept), appeal denied 91 N.Y.2d 1007 (1998). For example, if the matter is on the calendar for hearings and trial and the People announce "not ready" and request a specific adjournment of seven days and, due to calendar conflicts, the next court date is scheduled for the eighth day, only seven days (i.e., and not eight days), for CPL § 30.30 purposes, are charged as non-excludable time. Notwithstanding the People's request for nine days, and solely because the proposed adjournment would fall on the Friday after Thanksgiving, the court ruled that the People would be charged until December 1st (i.e., the following Monday) and adjourned the matter until January 12, 2015. Therefore, the 12 day period between November 19, 2014 and December 1, 2014 is chargeable as non-excludable time for CPL § 30.30(1)(b) purposes.
On January 12, 2015, the defendant was not present. The court (at defense counsel's request) stayed a bench warrant and adjourned the matter until February 5, 2015 for any necessary hearings and trial. In computing the time within which the People must be ready for trial, a period of delay resulting the absence or unavailability of the defendant is excludable for CPL § 30.30 purposes. CPL § 30.30(4)(c)(i). Furthermore, a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel is also excludable time for CPL § 30.30 purposes. CPL § 30.30(4)(b). Accordingly, the entire period from January 12, 2015 until February 5, 2015 is excludable time for CPL § 30.30 purposes.
On February 5, 2015, the People indicated that they were not ready to proceed because the arresting officer was unavailable and requested six days. The court indicated that the People would be charged until a SOR is served and filed and adjourned the matter until March 24, 2015. The People served and filed a SOR off-calendar (the February 11th SOR ) on February 11, 2015 (i.e., on the very day the People had indicated that they would be ready for trial at the February 5, 2015 calendar appearance).
On March 24, 2015, the People were ready to proceed with any necessary hearings and trial and the defendant left court prior to the case being called. When the case was called, the People indicated that they had been ready to proceed with any necessary hearings and trial until the assigned assistant district attorney became engaged on a different trial in Trial Part 5. Defense counsel requested (and the People consented) that the People be charged until a SOR is served and filed, and the court further adjourned the matter until April 27, 2015. The People served and filed a second off-calendar SOR on March 27, 2015, i.e., three days after they had indicated that they were ready to proceed until the defendant had absconded from court (the March 27th SOR ).
On April 27, 2015, the People indicated that they were not ready for trial because the assigned assistant district attorney had been sent to "Grand Jury training". The court indicated that the People would again be charged until they serve and file a SOR and the matter was further adjourned until June 8, 2015 for any necessary hearings and trial. The People served and filed a SOR off-calendar on May 6, 2015.
On June 8, 2015, July 6, 2015 and August 13, 2015, for various reasons discussed below, the defendant was not prepared to go to trial.
A. CPL § 30.30(1)(b) is the controlling statute and an SOR is presumptively truthful and accurate
Pursuant to CPL § 30.30(1), speedy trial time is determined based on the highest charge in the accusatory instrument. People v. Walton, 165 Misc.2d 672, 674 (Crim Ct, Richmond County 1995). In the instant case, the highest crime charged is Assault in the Third Degree (PL § 120.00[1] ), a misdemeanor which, upon conviction, would be punishable by a sentence of imprisonment not to exceed one year. PL § 70.15(1). Where, as here, a defendant is charged with a misdemeanor punishable by a sentence of imprisonment of more than three months, a speedy trial motion must be granted if the People are not ready for trial within 90 days of commencement of the criminal action. CPL § 30.30(1)(b).
The defendant bears the first instance burden of establishing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute. People v. Santos, 68 N.Y.2d 859, 861 (1986). Once the defendant has satisfied that burden, the People have the burden to go forward demonstrating the presence of sufficient excludable time in order to withstand a motion to dismiss. Id.
The People are ready for trial when they either communicate their actual readiness in open court or serve upon defense counsel and file with the court a statement of actual readiness. People v. Kendzia, 64 N.Y.2d 331, 337 (1985). However, the People cannot be ready for trial unless and until they have converted a misdemeanor complaint into an information. See People v. Caussade, 162 A.D.2d 4, 8 (2d Dept 1990). In order for a misdemeanor complaint to be converted into an information, the factual portion of the instrument must contain "non-hearsay allegations that establish, if true, every element of the crime charged and defendant's commission thereof." CPL § 100.40(1)(c) ; People v. Alejandro, 70 N.Y.2d 133 (1987).
In support of his motion, the Defendant argues that the People should be charged with the entire period from February 5, 2015 to May 6, 2015 because the People's off-calendar February 11th SOR and March 27th SOR were illusory since the People announced not ready at subsequent court dates and "could not provide any reason whatsoever for their repeated shifts from ready to not ready over this six month period." Defense Affirmation at pg. 10. The court does not agree.
It is well established that there is a presumption that a statement of readiness is truthful and accurate. See People v. Sibblies, 22 NY3d 1174 (2014, Graffeo, J., concurring)citing People v. Miller, 113 AD3d 855, 887 (3d Dept.2014), People v. Acosta, 249 A.D.2d 161, 161 (1st Dept.1998) and People v. Bonilla, 94 AD3d 633 (1st Dept.2012). The presumption however is rebuttable where the record does not support the inference that the People made an initial strategic decision to proceed with a minimal prima face case. Bonilla, 94 AD3d 633 citing People v. Wright, 50 AD3d 429 (1st Dept.2008). Consequently, the People should be charged with speedy trial time when a statement of readiness is followed by an unexplained lack of readiness and there is "proof that the readiness statement did not accurately reflect the People's position." Sibblies, 22 NY3d at 1180–1181quoting People v. Carter, 91 N.Y.2d 795, 799 (1998).
B. Nothing in the record rebuts the presumption that the February 11th SOR was truthful and accurate
As discussed above, the February 11th SOR was served and filed on the day requested by the People, who represented at the February 5, 2015 calendar call that they would in fact be ready to proceed with any necessary hearings and trial on February 11, 2015. On March 24, 2015, the very next calendar appearance, the defendant left court and, thus was not available to proceed to trial despite that prior to the case being called the People were ready to proceed. By the time when defense counsel signed in and the case was called, the People indicated that they had were no longer ready to proceed because the assigned assistant district attorney had in the meantime became engaged on trial in another matter. It is beyond cavil that "[n]o amount of prosecutorial assets or careful planning or preparation can allow one person to be in two places at the same time. No wrongdoing or dereliction has occurred if an assigned assistant, in good faith, is ready for trial and is ordered to trial on another matter or a trial which is expected to end carries over." People v. McBee, 172 Misc.2d 196, 199 (Sup.Ct., Kings County, 1997) ; See People v. Goss, 87 N.Y.2d 792 (1996). Under the circumstances,, neither the record nor the applicable law supports rebutting the presumption of truthfulness and accuracy afforded to the People's February 11th SOR. Accordingly, only the six day period from February 5, 2015 until February 11, 2015 is chargeable as non-excludable time pursuant to CPL § 30.30(1)(b).
C. Nothing in the record rebuts the presumption that the March 27th SOR was truthful and accurate
The March 27th SOR was filed three days after the defendant had voluntarily removed himself from the court and when the People were ready for trial until the assigned assistant was sent out to trial on another matter prior to the instant case being called by the court. Thereafter, on April 27, 2015, the next scheduled appearance, the People indicated that they were not ready because the assigned assistant district attorney was in grand jury training. Regrettably, assistant district attorneys are sent to grand jury training with little or no prior notice. Yet, nothing in the record suggests anything untoward about the People's March 27th SOR. Accordingly, only the three day period from March 24, 2015 until March 27, 2015 is chargeable as non-excludable time for CPL § 30.30(1)(b) purposes.
D. June 8th until July 7th is excludable time
At the June 8, 2015 calendar call of this case, a colleague of the defendant's attorney indicated that the defendant was not ready for trial because the defendant's attorney was out of the office. Accordingly, the matter was further adjourned until July 7, 2015 for any necessary hearings and trial. Under the circumstances, to wit the defendant's unreadiness to proceed, the entire time period from June 8, 2015 until July 7, 2015 is excludable time for CPL § 30 .30 purposes.
E. July 7th until August 13th is excludable time
The defendant was not present in court on that occasion allegedly because the defendant had a stroke. The court issued but stayed a bench warrant and the matter was further adjourned to August 13, 2015 for any necessary hearings and trial. Accordingly, the entire time period from July 7, 2015 until August 13, 2015 is excludable time for CPL § 30.30 purposes.
F. August 13th until September 21st is excludable time
On that same day, the defendant's motion was served and filed and the case was adjourned until September 21, 2015 pending the court's decision on that motion. An adjournment for motion practice and the period during which the motion is "under consideration by the court" is excludable time. CPL § 30.30(4)(a) ; People v. Stewart, 57 AD3d 1312, 1314 (3rd Dept 2008). Accordingly, the entire period from August 13, 2015 until September 21, 2015 is excludable time for CPL § 30.30 purposes.
Conclusion
In sum, this court finds that the People are charged with 49 days of non-excludable time, and therefore, the defendant's motion to dismiss pursuant to CPL § 30.30(1)(b) is denied.
The foregoing constitutes the decision and order of the court.