Opinion
No. 2006KN051748.
Decided October 2, 2008.
A.D.A. Ari Farkus, for the People.
Paul J. Madden, Esq., for the Defendant.
The defendant, Jerry Williams is charged with Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law ["PL"] § 220.03) and Criminal Facilitation in the Fourth Degree (PL § 115.00). The defendant moves for an order dismissing the accusatory instrument on the grounds that his speedy trial right pursuant to Criminal Procedure Law ("CPL") 30.30 has been violated and in the interest of justice pursuant to CPL 170.40. The People oppose these motions.
CPL 30.30 CLAIM
This court makes the following findings of fact and conclusions of law:
Findings of Fact
On July 28, 2006, the People served and filed a felony complaint against the defendant and another individual charging them with Criminal Possession of a Controlled Substance in the Seventh Degree, Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16) and Criminal Sale of a Controlled Substance in the Third Degree (PL § 220.39). The defendants were arraigned. The court ordered that new counsel be assigned to the defendant because his counsel at arraignment had represented both defendants. The case was adjourned for action of the grand jury until July 31, 2006.
On July 31, 2006, the defendant was not produced. People announced that the grand jury had not acted on the felony complaint. The co-defendant's case was severed from defendant's. The defendant's case was adjourned until August 1, 2006 for action of the grand jury.
On August 1, 2006, the People did not announce grand jury action. The defendant's present counsel, having been assigned to the case by the court, filed a notice of appearance. The defendant served and filed notice of his intention to testify before the grand jury pursuant to CPL 190.50(5)(a). The court adjourned the case until August 3, 2006 for grand jury action.
On August 3, 2006, the People did not announce grand jury action and requested an adjournment until September 21, 2006 for such action.
On September 11, 2006, the grand jury voted a true bill. On the same date, the People filed in Supreme Court an indictment (No. 6164-2006) and a statement of readiness for trial. The People served both documents on the defendant's former counsel but not his new counsel.
On September 21, 2006, the Criminal Court transferred the case to the Supreme Court.
On October 12, 2006, the defendant was arraigned on the indictment. The court adjourned the case until October 31, 2006 for serving and filing of a motion by the defendant to dismiss, the People's response and the court's decision.
On October 17, 2006, the defendant served and filed his motion to dismiss based on the assertion that the People had not honored his defendant's demand to testify before the grand jury.
On October 31, 2006, the People conceded that they had failed to honor the defendant's CPL 190.50 notice. The court adjourned the case until November 27, 2006 to give the People an opportunity to re-present the case to the grand jury.
On November 27, 2006, the defendant did not appear in court because he was hospitalized. The court issued but stayed a bench warrant. The People had not re-presented the case to the grand jury. The court adjourned the case until January 31, 2007 for grand jury action.
On January 31, 2007, the defendant did not appear in court. The court issued but stayed a bench warrant. The People had not re-presented the case to the grand jury. The court adjourned the case until March 2, 2007, on consent, for possible disposition.
On March 2, 2007, the People did not announce grand jury action. The court adjourned the case until March 15, 2007, on consent, for possible disposition.
On March 15, 2007, the People did not announce grand jury action. The court adjourned the case for grand jury action until April 10, 2007. The People contend in their response to the instant motion that plea negotiations continued during this period. However, minutes of the March 15, 2007 proceeding do not support a conclusion that the adjournment was ordered for possible disposition.
On April 10, 2007 and continuing through August 9, 2007, there were several consent adjournments ordered for possible disposition, which the defendant concedes.
On August 9, 2007, with plea negotiations at impasse, the court dismissed the indictment with leave to re-present the case to the grand jury and adjourned the case accordingly until September 19, 2007.
On September 19, 2007, the People did not announce grand jury action. The court adjourned the case until October 3, 2007 for grand jury action.
On October 5, 2007, the People re-presented the case to the grand jury, which voted no true bill and directed the People to file a prosecutor's information charging the current counts. The People contend that they served and filed the prosecutor's information and a statement of readiness in Criminal Court on October 5, 2007. However, a Supreme Court justice did not approve the grand jury's decision until October 9, 2007. The grand jury's directive with the attached prosecutor's information and statement of readiness was stamped in by the court clerk's office on October 10, 2007 and the postmark on the envelope in which the prosecutor's information and statement of readiness were mailed to defense counsel is dated October 10, 2007.
On October 12, 2007, the case was returned to Criminal Court in Part AP1F. Neither the defendant nor his counsel was present. Defense counsel contends in the instant motion that neither he nor the defendant was notified to appear. The People do not contend that counsel and the defendant were notified. The court adjourned the case until October 29, 2007. The court did not issue a bench warrant. The defendant's release on his own recognizance was continued.
On October 29, 2007, the defendant did not appear in court. Defense counsel informed the court that neither he nor his client had been notified to appear. The court issued but stayed a bench warrant and adjourned the case for arraignment until November 13, 2007.
On November 13, 2007, the defendant did not appear in court. The court established that the defendant was an in-patient at Interfaith Hospital. The court adjourned the case until January 3, 2008 for inspection of the grand jury minutes but did not excuse the defendant from having to appear.
On January 3, 2008, the defendant did not appear in court. The court was informed that the defendant was an in-patient at Terrace Health Care Center, a facility for persons with severe mental disabilities. The People did not have their file in court. The court noted that the People had not yet submitted the grand jury minutes to the court. The court adjourned the case until February 20, 2008 for inspection of the grand jury minutes and for discovery by stipulation ("DBS").The court excused the defendant for that appearance.
On February 20, 2008, the People submitted the grand jury minutes to the court, which adjourned the case until March 25, 2008 for inspection by the court. The defendant was excused. On March 18, 2008, the court issued a written decision that the grand jury minutes were sufficient to support the prosecutor's information.
On March 25, 2008, the court, at the defendant's request, adjourned the case until June 17, 2008 for serving and filing of the defendant's motion, the People's response and the court's decision.
On May 30, 2008, the defendant served and filed the instant motions.
On June 17, 2008, the People requested additional time, two weeks, to serve and file their response to the defendant's motions. The court granted the People's request for the extension and adjourned the case until August 13, 2008 for decision.
On July 3, 2008, the People served and filed their response.
On August 13, 2008, and again on September 12, 2008, the court adjourned the case for decision.
Discussion
Under New York's readiness rule, where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint pursuant to article 180 or a prosecutor's information is filed pursuant to section 190.70, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of the new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed. [CPL 30.30(5)(c).]
This action commenced on July 28, 2006, when the People filed a felony complaint charging the defendant with Criminal Possession of a Controlled Substance in the Seventh Degree and the afore-mentioned felony counts. The felony counts gave the People a readiness deadline of six months. CPL 30.30(1)(a). On October 10, 2007, the People served and filed a prosecutor's information which withdrew the felony counts and added Criminal Facilitation in the Fourth Degree. Criminal Possession of a Controlled Substance in the Seventh Degree and Criminal Facilitation in the Fourth Degree are class A misdemeanors (PL §§ 220.03 and 115.00, respectively). Each is punishable by up to one-year of imprisonment. PL § 70.15(1). Ordinarily, the time-limit for the People to be ready for trial when the top count is a class A misdemeanor is 90 days from the filing of the accusatory instrument. For this former felony accusatory instrument, however, the CPL 30.30 time limit for readiness for trial is 90 days of chargeable time from the dismissal of the felony counts unless the aggregate of the chargeable time after reduction and the preceding chargeable time exceeds six months.
The defendant bears the burden of going forward with sworn allegations of fact to show that there has been an inexcusable delay beyond the time allowed by the statute, and then the People have the burden of justifying that delay. See People v. Santos, 68 NY2d 859 (1986).
A review of the defense motion papers, the People's response, minutes of proceedings and the court file discloses that the periods of delay are attributable as follows:
The adjournment from July 28, 2006 through July 31, 2006, 3 days, must be charged to the People because they did not report affirmative grand jury action. Contrary to the People's argument, the fact that the court ordered that a new attorney be assigned to the defendant did not make the adjournment excludable. Rather, CPL 30.30(4)(f) carves out an exception to exclusion when the defendant is without counsel due to the court's fault. See People v. Cortes, 80 NY2d 201, 209 (1992). Having concluded that the defendant was indigent, the court was required to provide counsel to him. This the court did not do until the adjourn date.
The adjournment from July 31, 2006 through August 1, 2006, 1 day, must be charged to the People because they did not report affirmative grand jury action and the CPL 30.30(4)(f) exception is not available to them because the defendant's not having counsel was the fault of the court. Id.
As the People concede, the adjournment from August 1, 2006 through August 3, 2006, 2 days, must be charged to them because they did not report affirmative grand jury action.
As the People concede, the adjournment from August 3, 2006 through October 12, 2006, 70 days, must be charged to them. The People's filing of a statement of readiness on September 11, 2006 based on the grand jury's voting of a true bill was ineffective because the People did not serve that document on defense counsel but on former defense counsel. See People v. Kendzia, 64 NY2d 331 (1985)
As the defendant concedes, the adjournment from October 12, 2006 through October 31, 2006, is not chargeable to the People because it was ordered that the defendant serve and file his motion to dismiss the indictment based upon the People's failure to honor his demand to testify before the grand jury.
As the People concede, the adjournment from October 31, 2006 through November 27, 2006, 27 days, must be charged to them because it was ordered to give them an opportunity to re-present the case to the grand jury after acknowledging that they had failed to present the defendant before the grand jury which had voted the true bill.
The adjournment from November 27, 2006 through January 31, 2007, is not chargeable to the People because the defendant did not appear in court. The court issued but stayed a bench warrant. This was a concession to the defendant for what was the equivalent of a request for an adjournment. See CPL 30.30(4)(b); People v. Cruz, 236 AD2d 322 (1st Dept), appeal denied 89 NY2d 1090 (1997); People v. Lampley, 15 Misc 3d 1130(A) (Crim Ct, Kings County 2007)(unreported); People v. Malivert , 15 Misc 3d 478 (Crim Ct, Kings County 2007).
As the defendant concedes, the adjournment from January 31, 2007 through March 2, 2007 is not chargeable to the People. First, the adjournment was in part ordered so that the parties could attempt to agree upon a disposition of the case. Second, the court's decision to issue but stay a bench warrant in reaction to the defendant's absence from court constituted an adjournment on the defendant's behalf. See CPL 30.30(4)(b). Third, it was an adjournment justified by the defendant's unavailability for trial. CPL 30.30(4)(c)(i).
As the defendant concedes, the adjournment from March 2, 2007 through March 15, 2007 is not chargeable to the People. The adjournment was ordered to so that the parties could discuss a possible disposition. See CPL 30.30(4)(b); People v. Worley, 66 NY2d 523 (1985).
The adjournment from March 15, 2007 through April 10, 2007 is not chargeable to the People. The court file shows that the adjournment was on consent, as the People contend. Id. The defendant contends that the adjournment was ordered solely for grand jury action. However, he has submitted nothing to support that contention.
The defendant concedes that the adjournments ordered between April 10, 2007 and August 9, 2007 are not chargeable to the People.
As the People concede, the adjournment from August 9, 2007 through September 19, 2007, 41 days, must be charged to them. The adjournment was ordered after the court dismissed the indictment to enable the People to re-present the case to the grand jury.
As the People concede, the adjournment from September 19, 2007 through October 3, 2007, 14 days, must be charged to them because the purpose of the adjournment was grand jury action.
Of the period from October 3, 2007 through October 12, 2007, just 7 days must be charged to the People. This is because on October 10, 2007 the People filed with the Criminal Court and mailed to defense counsel a statement of readiness for trial accompanied by (1) an order of the grand jury which directed the People to file a prosecutor's information charging the instant misdemeanors and (2) the prosecutor's information itself. See People v. Kendzia, 64 NY2d 331.
The adjournment from October 12, 2007 through October 29, 2007, is not chargeable to the People. The case was added to the Criminal Court calendar on October 12, 2007 in response to the People's serving and filing of the prosecutor's information merely to get the case back on track in the Criminal Court and to set a date for the parties to appear for arraignment. (Neither the defendant nor his counsel was present in court on October 12, 2007.) This was a court adjournment. A delay in arraignment is attributable solely to the court and not to the prosecution. People v. Carter, 91 NY2d 795, 799 (1998); People v. Lindsey, 52 Ad2d 527, 530 (2d Dept 2008).
As the defendant concedes, the adjournment from October 29, 2007 through November 13, 2007 is not chargeable to the People because the defendant did not appear in court and the court issued but stayed a bench warrant. People v. Cruz, 236 AD2d 322.
As the defendant concedes, the adjournment from November 13, 2007 through January 3, 2008 is not chargeable to the People, because it was ordered so that the People could submit the grand jury minutes to the court for review in response to the defendant's motion to inspect. See CPL 30.30(4)(a); People v. Worley, 66 NY2d 523.
The adjournment from January 3, 2008 through February 20, 2008, is not chargeable to the People. The defendant did not appear in court and his presence had not been excused for the January 3, 2008 calendar call, despite the fact that the court had been informed by defense counsel that the defendant was in a nursing home . To be sure, the People did not submit the afore-mentioned grand jury minutes to the court for review as ordered on November 13, 2007, and this delay was unreasonable. See CPL 30.30(4)(a). Nevertheless, the defendant's un-excused absence tolled the CPL 30.30 statute. See CPL 30.30(4)(a); People v. Jones, 151 Misc 2d 582 (App Term 2d Dept 1991).
The court did excuse the defendant from having to appear at the February 20, 2008 calendar call.
As the defendant concedes, the adjournment from February 20, 2008 through March 25, 2008 is not chargeable to the People. This delay was caused by the court's need to inspect the grand jury minutes, which the People had submitted to the court. See CPL 30.30(4)(a); People v. Worley, 66 NY2d 523.
The adjournments from May 25, 2008 through October 2, 2008 are not chargeable to the People because they involved the serving and filing of the defendant's motions, the People's response and the court's decision. In deciding the CPL 30.30 claim the court notes that from commencement of this case with the filing of the felony complaint on July 28, 2006, until the dismissal of the felony counts on October 10, 2007, 165 chargeable days passed without the People effectively answering ready for trial. From the dismissal of the felony count, zero chargeable days have passed. Because the aggregate of these chargeable periods of time, 165 days, is less than the six-month limit for the original accusatory instrument, the 90-day limit for the misdemeanor information measured from dismissal of the felony counts is controlling in the instant motion. See CPL 30.30[c]). The People have not exhausted their time limit.
Accordingly, the defendant's motion for an order dismissing the accusatory instrument on CPL 30.30 grounds is hereby denied.
INTEREST OF JUSTICE CLAIM
CPL 170.40(1) provides that a court may dismiss an accusatory instrument if "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such accusatory instrument or count would constitute or result in injustice [.]" The statute lists the following ten factors which the court should consider, "to the extent applicable[:]"
(a) the seriousness and circumstances of the offense;
(b) the extent of harm caused by the offense;
(c) the evidence of guilt, whether admissible or inadmissible at trial;
(d) the history, character and condition of the defendant;
(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;
(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;
(g) the impact of a dismissal on the safety or welfare of the community;
(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;
(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion;
(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.
The court has considered all of these factors "to the extent applicable."
The defendant's principal argument for the extraordinary relief of a CPL 170.40 dismissal is that he has been confined to a nursing facility for sometime because he is suffering from schizophrenia, psychosis and physical ailments and is wheelchair-bound. The defendant has submitted a letter from a social worker at the nursing home where he previously resided. This letter states in part that he had been diagnosed with paranoid schizophrenia and was expected to be institutionalized for the rest of his life. The court agrees with the People that the defendant has not submitted a letter from his current nursing home confirming that he is expected to remain institutionalized for the rest of his life. However, the defendant has submitted a letter from a social worker at his current facility, dated May 9, 2008, to the effect that he has been diagnosed to be schizophrenic and psychotic and cannot walk without a walker. The court notes that early during the pendency of this case the defendant was rejected for a diversion program because of his mental problems.
Notwithstanding the lack of proof that the defendant is incompetent to stand trial and conclusive proof that he is too incapacitated to make his way to the courthouse in some assisted way, the court sees no reason to allow this case to be extended into the future with no end in sight. CPL 170.40 relief is not limited to those who, unlike the defendant, have unblemished records and stand to be stigmatized or excessively harmed by a criminal conviction. The statute also serves to protect society and those defendants who would be otherwise unjustly affected by "prosecution" itself. See CPL 170.40. In this matter, the defendant has been in a long-term care facility for nearly one year. There is no reason to believe that his condition will improve so that he may be tried by this court. To belabor this case any further would serve no legitimate purpose. It would not do anything to protect society from the sort of criminal activity of which the defendant is charged but rather it would merely tax the court system in money and time.
Accordingly, the defendant's motion for an order dismissing the case in the interest of justice is hereby granted.
This opinion shall constitute the decision and order of the court.