Opinion
Docket No. CR-013388-22QN
05-16-2023
The People of the State of New York, v. Zhagnay, Defendant.
For the People: Melinda Katz, District Attorney, Queens County (by ADA Jacob Saks) For Mr. Zhagnay: The Legal Aid Society (by Benjamin P.D. Mejia)
Unpublished Opinion
For the People: Melinda Katz, District Attorney, Queens County (by ADA Jacob Saks)
For Mr. Zhagnay: The Legal Aid Society (by Benjamin P.D. Mejia)
WANDA L. LICITRA, J.C.C.
The defense moves to renew this court's earlier denial of its C.P.L. § 30.30 motion to dismiss. They raise three new arguments: (1) that the People's statement of readiness was illusory because a court had not first re-arraigned Mr. Zhagnay on a replacing information; (2) that the People's statement of readiness was illusory because the People served a C.P.L. § 710.30 statement notice well after their certificate of discovery compliance; and (3) that the People are responsible for their delay in responding to the defense's initial motion beyond the court-imposed deadline.
The court grants the motion to renew, and upon renewal, again denies the motion to dismiss.
LEGAL ANALYSIS
The Criminal Procedure Law does not provide for a motion to renew. As a result, criminal courts sometimes apply C.P.L.R. § 2221, which provides for renewal in civil cases. (E.g., People v. Benitez, 75 Misc.3d 1204 [A], at *2 [Dist. Ct., Suffolk County 2022]). That application is controversial. (See People v. DeFreitas, 48 Misc.3d 569 [Crim. Ct., NY County 2015] [explaining that there are "both statutory and policy reasons for concluding that CPLR 2221 does not apply in a criminal case"]). Practically, however, when it comes to a court reviewing its own decisions, this controversy is of "no matter." (People v. Roberts, 70 Misc.3d 1221 [A], at *2 [Crim. Ct., NY County 2021] [Weiner, J.]). Courts have inherent authority to review their own decisions, so renewal is available, regardless of C.P.L.R. § 2221, in the court's discretion and in the interest of justice. (See id.; People v. Godbold, 117 A.D.3d 565, 566 [1st Dep't 2014]; see also Global Liberty Ins. Co. v. Laruenceau, 187 A.D.3d 570, 571 [1st Dep't 2020]; Kaszar v. Cho, 160 A.D.3d 501, 502 [1st Dep't 2018]; DeFreitas, 48 Misc.3d at 576).
It is prudent for the court to revisit its ruling here, and the People do not argue otherwise. "[T]he ruling that is the subject of the motion [to renew] is [the court's] own, and not that of a different judge." (DeFreitas, 48 Misc.3d at 576). The defense raises new issues-they do not merely restate older ones already raised and rejected. (Cf. People v. Ajunwa, 76 Misc.3d 1217 [A] [Crim. Ct., Bronx County 2022] [where the People simply restated their rejected arguments from the initial motion, there was no reason to revisit the decision]). And it is "well settled that a failure of counsel to assert a meritorious speedy trial claim is, by itself, a sufficiently egregious error to render a defendant's representation ineffective." (People v. St. Louis, 41 A.D.3d 897 898 [3d Dep't 2007]). Here, the defense has "identified" some cases, "albeit... nonbinding one[s]," that "address[] th[e] same issue[s]" raised in their new motion. (DeFreitas, 48 Misc.3d at 576). If the court refuses to consider these potentially meritorious claims, it may imperil any later conviction in this case. Therefore, it is far more efficient to grant renewal and deal with the issues presented now.
The defense makes three new arguments as to why the court should grant its renewed C.P.L. § 30.30 motion. First, that the People's statement of readiness was illusory because a court had not first re-arraigned Mr. Zhagnay on a replacing information. Second, that the People's statement of readiness was illusory because the People served a C.P.L. § 710.30 statement notice well after their certificate of discovery compliance. And third, that the People are responsible for their delay in responding to the defense's initial motion beyond their court-imposed deadline. The court takes each in turn.
The defense's first argument goes like this. Criminal Procedure Law § 100.50 requires that:
If at any time before entry of a plea of guilty to or commencement of a trial of an information or a prosecutor's information, another information or, as the case may be, another prosecutor's information is filed with the same local criminal court charging the defendant with an offense charged in the first instrument, the first such instrument is, with respect to such offense, superseded by the second and, upon the defendant's arraignment upon the latter, the count of the first instrument charging such offense must be dismissed by the court. The first instrument is not, however, superseded with respect to any count contained therein which charges an offense not charged in the second instrument.
In this case, the defense says, the People filed and served an off-calendar "superseding information" alongside their statement of readiness. The defense reads C.P.L. § 100.50[1] to say that this new accusatory instrument did not take effect until the first one was dismissed "upon the defendant's arraignment." Therefore, they reason, the People could not validly state ready until the re-arraignment, which in this case happened long after ninety days from when the case commenced. (See C.P.L. § 30.30[1][b]). The defense cites an unpublished trial court case from Brooklyn, People v. Horne, which granted a motion to dismiss upon this same argument. (CR-024322-21KN [Crim. Ct., Kings County Mar. 28, 2022]).
The problem with this argument is that C.P.L. § 100.50[1] has no relevance to this case. That provision applies when the People previously filed "an information or a prosecutor's information" and then file" another information" or" another prosecutor's information." (C.P.L. § 100.50[1] [emphases added]). But that is not what happened here. In this case, the People initially filed a misdemeanor complaint which they then replaced, off calendar, with an information. As a result, the relevant provision of the criminal procedure law is 170.65[1], not 100.50[1]. And in contrast to C.P.L. § 100.50[1], C.P.L. § 170.65[1] does not require that a person first be re-arraigned before the initial accusatory instrument is dismissed. That provision only states:
A defendant against whom a misdemeanor complaint is pending is not required to enter a plea thereto. For purposes of prosecution, such instrument must, except as provided in subdivision three, be replaced by an information, and the defendant must be arraigned thereon. If the misdemeanor complaint is supplemented by a supporting deposition and such instruments taken together satisfy the requirements for a valid information, such misdemeanor complaint is deemed to have been converted to and to constitute a replacing information.
Unlike C.P.L. § 100.50[1], nothing in this provision says that the new information only takes effect when the accused person is re-arraigned. Instead, it only mandates that "the defendant must be arraigned." (See C.P.L. § 170.65[1]). As the Second Department's Appellate Term has explained, re-arraignment of a person on an information that replaces a misdemeanor complaint is not the People's responsibility. (People v. Rini, 34 Misc.3d 152[A] [App. Term, 2d Dep't 2012]). Rather, the "scheduling of defendant's arraignment 'is the responsibility of the court rather than the People.'" (Id. at *2 [quoting People v. Rickard, 71 A.D.3d 1420, 1421 [4th Dep't 2010]). As a result, it has no relevance to analyzing the People's readiness here. When the People filed and served, off calendar, the new information, it replaced the misdemeanor complaint "on that date." (See People v. Johnson-McLean, 71 Misc.3d 31 [App. Term, 1st Dep't 2021] [noting that, under C.P.L. § 170.65[1], a complaint and supporting deposition were deemed an information on the date the People filed and served the supporting deposition]). The People's readiness was therefore not ineffective on the date they filed and served notice of it.
To be sure, the People cannot file an off-calendar statement of readiness at a time that would make arraignment before the expiration of the C.P.L. § 30.30 period impossible. (See People v. England, 84 N.Y.2d 1 [1994] [holding that readiness was ineffective where the People waited until the last day of the statutory period to secure an indictment, making it impossible to arraign the accused in time]). In addition, if the People sought to supersede a factually facially insufficient information with a second, factually facially sufficient information, that may require them to have the person arraigned to dismiss the first instrument. (See C.P.L. §§ 100.50[1] [a second information only supersedes the first upon re-arraignment]; 30.30[5-a] [the People must certify that facially insufficient counts "have been dismissed" before validly stating ready]). Neither of these situations are present here.
As the defense notes, another Queens County criminal court reached a contrary conclusion in an unpublished decision. (People v. Morales, CR-003010-22QN [Crim. Ct., Queens County Nov. 29, 2022]). However, that decision appears to directly conflict with the Second Department, Appellate Term's decision in People v. Rini and so this court respectfully disagrees with it. (34 Misc.3d 152[A] [App. Term, 2d Dep't 2012]).
The defense next argues that the People's belated service of a C.P.L. § 710.30 statement notice shows that their initial certificate of discovery compliance was not proper, and thus their statement of readiness illusory. Absent special circumstances, the People are required to automatically produce "all items and information that relate to the subject matter of the case" that are in their actual or constructive possession before stating ready for trial. (C.P.L. §§ 245.20[1], [2], 245.50[3], [1]; see also People ex rel. Ferro v. Brann, 787, 787-88 [2d Dep't 2021]). The defense argues that because the People did not serve their statement notice until well after their certificate, they failed to meet that obligation.
The court disagrees. The defense does not allege that the People failed to disclose the statement itself before filing their certificate-only that the People failed to provide § 710.30 notice of it. (See Def. Mot. at 7-8). In fact, the People conclusively demonstrate that they disclosed this statement with their certificate of discovery compliance. (See Pr. Resp. Ex. C at 1-2). But discovery only concerns the People's disclosure of a statement, (see C.P.L. § 245.20[1][e]), while C.P.L. § 710.30 notice concerns the People's intent to use it at trial. (See generally People v. Lopez, 84 N.Y.2d 425 [1994] [explaining that the § 710.30 notice of intent to use a statement is separate from disclosing the statement in discovery]). Thus, a belated C.P.L. § 710.30 notice is not itself relevant to the People's discovery obligations (unless, of course, the statement was not otherwise disclosed). (See id.).
Finally, the defense argues that the People should be held responsible for their delay, beyond the court-imposed deadline, in responding to the initial motion. Here, the court agrees. Under C.P.L. § 30.30[4][a], a "reasonable period of delay resulting from... pre-trial motions" must be excluded from any C.P.L. § 30.30 calculation. However, as a rule of law, the People are responsible for any unexcused time "between [a] court-imposed deadline to respond... and the date on which the People actually filed a response." (Ferro, 197 A.D.3d at 788; see also People v. Delosanto, 307 A.D.2d 298, 299 [2d Dep't 2003] ["[T]he Supreme Court should have charged the People with a 13-day period [between] a court imposed deadline to respond to one of the defendant's pretrial motions [to] the date that the People actually filed a response."]; People v. Gonzalez, 266 A.D.2d 562, 563 [2d Dep't 1999] [holding that a period between which "the People were originally scheduled to respond" and "the date upon which they actually did respond" should be "charged to the People" because "it constitutes a period of unreasonable delay"]; People v. Commack, 194 A.D.2d 619, 620 [2d Dep't 1993] ["[T]he last 10 days... should be charged to the People because the People did not respond to the motion until 10 days after the court-ordered deadline."]). Here, the People were ordered to file their response by November 28, 2022. They only did so on December 6, 2022. Therefore, they are responsible for eight additional days of delay.
The People stated ready on the 81st day after commencing this case. Adding eight days of delay means that the clock is now tolled on the 89th day. That is within the People's C.P.L. § 30.30 readiness time. (See C.P.L. § 30.30[1][b]). Therefore, the motion to dismiss is denied.
The foregoing constitutes the order and decision of the court.