People v Lang

[*1] People v Lang 2004 NY Slip Op 51474(U) Decided on December 1, 2004 Criminal Court, Kings County Williams, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 1, 2004
Criminal Court, Kings County

THE PEOPLE OF THE STATE OF NEW YORK

against

LAMONT LANG, Defendant.



2003KN047804



FOR THE PEOPLE: CHARLES J. HYNES, DISTRICT ATTORNEY

350 JAY STREET, BROOKLYN, NEW YORK 11201

BY: ADA TAMARA EDELSTEIN

FOR THE DEFENDANT: THE LEGAL AID SOCIETY

111 LIVINGSTON STREET, BROOKLYN, NEW YORK 11201

BY: MONICA SHEEHAN

Betty J. Williams, J.

The Defendant is charged with Petit Larceny, (PL §155.25), Criminal Possession of Stolen Property in the Fifth Degree, (PL §165.40), Criminal Possession of Marihuana in the Fifth Degree, (PL §221.10[2]), and Unlawful Possession of Marihuana, (PL 221.05).[FN1] The Defendant moves to dismiss pursuant to CPL §30.30 and 170.35. For the reasons that follow, the Defendants application is denied.

LAW

The People must announce ready for trial within ninety (90) days of the commencement of an action where the top count charged against the defendant is a class "A" misdemeanor (CPL §30.30[1][b]). The People bear the burden to show any prereadiness exclusion once the Defendant has shown the existence of a delay greater than ninety days, (People v. Chavis, 91 NY2d 500 [1998]). The Defendant then has the final burden to show postreadiness inclusions (People v. Daniels, 217 AD2d 448, 452 [1st Dept.], app. denied 88 NY2d 917 [1996]). The People maintain the burden to produce a record of the proceedings sufficient for the court to make an informed decision (People v. Stirrup, 91 NY2d 434 [1998]; People v. Cortes, 80 NY2d 201, 215 [1992]).

There is sufficient indicia that the People were ready for trial when the record of the proceedings show that the People were actually ready and (1) clearly stated their readiness on the record; or (2) filed and served a Statement of Readiness off calendar (People v. Smith, 82 NY2d 676 [1993]; People v. Kendzia, 64 NY2d 331 [1985]). The People cannot be actually ready until the People convert the complaint to an information (People v. Colon, 59 NY2d 921 [1983]). The People need not convert the entire complaint since an announcement of readiness can be asserted for each individual count in an accusatory instrument (People ex rel Ortiz v. Commissioner of New York City Dept. Of Correction, 93 NY2d 959 [1999][defendant could not be released pursuant to CPL§170.70 because the People had converted at least one count in the accusatory instrument]; People v. Gonzalez, 168 Misc 2d 136 [App. Term, 1st Dept.], lv. [*2]denied 88 NY2d 936 [1996]). The People can even be ready to proceed to trial on one charge despite the existence of a fatal defect in another (People v. Minor, 144 Misc 2d 846 [App. Term 2d Dept.], lv. denied 74 NY2d 666 [1989]; see also People v. Brooks, 190 Misc 2d 247 [App. Term, 1st Dept. 2001]). The defective charge can be dismissed and the People can then proceed upon the remaining count (Minor at 848). The speedy trial time for each charge is measured by the statutory time of the highest count charged (CPL §30.30[1][b]).

The People are allowed a reasonable period of time to prepare for hearings and trial after a decision on defense motions (People v. Vasquez, 3 AD3d 343 [1st Dept. 2004], lv. denied 2 NY3d 765 [2004]; People v. Green, 90 AD2d 705 [1st Dept.], lv. denied 58 NY2d 784 [1982]; see also CPL §30.30[4][a]). The rationale for this holding is that the People cannot be expect to go forward on the day that the court renders its decision since the People cannot be aware of how the court will rule on the motions (Green, 90 AD2d 705, 705). In fact, the Court of Appeals has ruled that the People are entitled to a reasonable period of time to prepare for trial even where the Defendant requests a motions schedule but fails to file any motions (People v. Brown, 99 NY2d 488 [2003]).

Similarly, the People are entitled to a reasonable period of time to prepare for hearings and trial after a lengthy adjournment resulting from a defense request. Like Green, (90 AD2d 705) and it's progeny, this position is rooted in a statutory scheme which, excludes adjournments resulting from, actions of the Defendant (see CPL §30.30[4]). The result is a waiver of speedy trial time periods by the defense, thereby estopping further argument that the People should be charged, even where the People have not converted all the charges (People v. Worley, 66 NY2d 523 [1985]; see also People v Pierce, 5 Misc 3d 127[A] [App. Term, 2d Dept.], lv. denied 3 NY3d 710 [2004]; People v Edobo, 2004 WL2126325, *1 [App. Term, 2d Dept. September 21, 2004]; People v Mikucki, 2003 WL21697323, *1 [App. Term, 2d Dept. June 24, 2003]). The People can no more be expected to intuit the outcome of the defense requested adjournment than a court decision on motions (see Green, supra). Therefore, in the absence of an indication that the People were expected to be ready for hearings and trial after a defense requested adjournment, the resulting adjournment for the People to prepare for hearings and trial is excludable (Worley, supra; Pierce, supra; Edobo, supra; Mikucki, supra).

ANALYSIS

August 10, 2003 to October 1, 2003: The Defendant was arraigned on August 10, 2003, and released upon his own recognizance. The People served and filed a three page document. The first two pages, included sections numbered one through nine, were signed by Rawn Brown and converted the theft related charges. The third page, sections numbered ten through twelve, is signed by Police Officer George Matthews and gives CPLR §710.030(1)(b) notice of two identification procedures by unnamed witnesses.

There is neither an indication in the court records, nor an assertion in the People's responsive papers that the People announced ready at the Defendant's arraignment. The case was adjourned to October 1, 2003 for conversion of the drug charges. The People are charged with this entire fifty-two (52) day period since the People were not actually ready (Smith, 82 NY2d 676; Kendzia, 64 NY2d 331).

October 1, 2003 to November 13, 2003: On October 1, 2003, the People filed and served a laboratory report indicating that one bag tested positive for marijuana. The People have provided a transcript of the October 1, 2003 proceeding which, indicates in pertinent part:

THE COURT: What are you serving and filing Mr. Varghese? Will you state that again, sir? [*3]

MR. VARGHESE: The People are serving and filing a lab report. The People are ready. The offer is sixty days' jail.

MS. SHEEHAN: That's respectfully declined, your Honor. The CASES representative interviewed my client. He is on probation. CASES is going to speak to probation, and my client will speak to probation. I'm going to ask the Court to let him plead guilty to the docket and do CASES. He is working now. He also needs time to arrange for his - -

THE COURT: There is - -

MS. SHEEHAN: I'm going to ask for an adjournment.

THE COURT: What was the offer?

MS. SHEEHAN: Their offer is an A Misdemeanor and sixty days' jail, your Honor.

THE COURT: Are we converted here?

MS. SHEEHAN: I believe they are.

MR. VARGHESE: We're ready on the other two charges (Transcript p. 2-3).

The People's announcement of readiness was asserted for the two converted theft related charges and not the two drug charges for which the People still needed the supporting deposition of Officer Matthews (Ortiz, 93 NY2d 959; Minor, 144 Misc 2d 846). The case was adjourned to November 13, 2003 for a possible disposition. The People are not charged with any time for this defense requested adjournment (Pierce, supra; Edobo, supra; Mikucki, supra), including the unconverted drug charges (Worley, supra).

November 13, 2003 to January 14, 2004: The People filed and served discovery on November 13, 2003. The People were still recommending sixty (60) days incarceration and the Defendant still wanted a conditional discharge with participation in the Center for Alternative Sentencing and Employment Services (hereinafter "CASES") as a condition of the plea. However, the Defendant had not spoken to his probation officer and requested another adjournment. The Record of Court Action indicates that this adjournment was expressly on consent. The People are not charged with any time for this consent adjournment (Smith, 82 NY2d 676; Pierce, supra; Edobo, supra; Mikucki, supra).

January 14, 2004 to March 3, 2004: On January 14, 2004, the People announced ready on the converted theft related counts however, the supporting deposition from Officer Matthews, as to the drug charges, was still missing. The case was adjourned to March 3, 2004, for a CASES representative to speak with Probation to determine if the Defendant's plea would result in a violation of probation. The People are not charged with any time for this defense requested adjournment (Pierce, supra; Edobo, supra; Mikucki, supra), including the unconverted drug charges (Worley, supra).

March 3, 2004 to April 22, 2004: On March 3, 2004, the case was adjourned at the [*4]Defendant's request for the CASES representative to follow up with the Defendant's probation officer regarding a disposition. People are not charged with any time for this defense requested adjournment (Pierce, supra; Edobo, supra; Mikucki, supra), including the unconverted drug charges (Worley, supra).

April 22, 2004 to June 2, 2004: On April 22, 2004, it was determined that the Defendant would not plead to the charge because probation would not promise not to violate the Defendant if he were to be convicted of the charges. The case was adjourned to June 2, 2004, for trial.

As of April 22, 2004, the Defendant had requested almost seven months of adjournments for possible disposition. The Defendant now argues that after two hundred and four (204) days of defense requested adjournments the People should be charged for this forty-one (41) day period while the People prepared for trial.

Beginning on October 1, 2003, the Defendant requested four consecutive adjournments over approximately seven months because the Defendant wanted to plead guilty and be sentenced to CASES. The Defendant requested each of these adjournments to arrange a concession from Probation that he would not be violated by the plea. There is no indication that the People were expected to be ready for trial in the event that the plea did not take place on April 22, 2004. The People were entitled to a reasonable period of time to prepare for hearing and trial after this lengthy delay occasioned by the defense. The People are not charged with any time for this adjournment from April 22, 2004 to June 2, 2004 (Worley, supra; Pierce, supra; Edobo, supra; Mikucki, supra; CPL §30.30[4][b]; see also Vasquez, supra; Green, supra).

June 2, 2004 to June 29, 2004: On June 2, 2004 the court records do not indicate whether or not the People were ready to proceed. The court record does indicate that the Defendant consented, once again, to an adjournment to June 29, 2004, for possible disposition. The People are not charged with any time for this defense requested adjournment (Pierce, supra; Edobo, supra; Mikucki, supra), including the unconverted drug charges (Worley, supra).

June 29, 2004 to November 10, 2004: On June 29, 2004, Defendant requested a motions schedule to file the instant motion. This period of time is excludable for motion practice (CPL 30.30[4][a]).

CONCLUSION

The People are charged with fifty-two (52) days. Accordingly, the Defendant's motion to dismiss is denied.

This constitutes the Decision and Order of the Court.

Dated: New York, New York

December 1, 2004

Betty J. Williams,

J.C.C.

APPEARANCES OF COUNSEL

FOR THE PEOPLE: CHARLES J. HYNES, DISTRICT ATTORNEY

350 JAY STREET, BROOKLYN, NEW YORK 11201

BY: ADA TAMARA EDELSTEIN [*5]

FOR THE DEFENDANT: THE LEGAL AID SOCIETY

111 LIVINGSTON STREET, BROOKLYN, NEW YORK 11201

BY: MONICA SHEEHAN Footnotes

Footnote 1: The Petit Larceny, (PL §155.25), and Criminal Possession of Stolen Property in the Fifth Degree, (PL §165.40) shall hereinafter be "the theft related charges." The Criminal Possession of Marihuana in the Fifth Degree, (PL §221.10[2]), and Unlawful Possession of Marihuana, (PL 221.05) shall hereinafter be "the drug charges."