People v Gordon

[*1] People v Gordon 2005 NY Slip Op 50032(U) Decided on January 19, 2005 City Court Of Mount Vernon Seiden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 19, 2005
City Court of Mount Vernon

THE PEOPLE OF THE STATE OF NEW YORK,

against

EVAN GORDON, Defendant.



04-3696



Westchester County District Attorney

Mount Vernon branch

Elias Steven Gootzeit, Esq. Attorney for Defendant

351 Bedford Avenue

Mt. Vernon, New York 10553

Adam Seiden, J.

The defendant, charged with criminal possession of marihuana in the fifth degree pursuant to P.L. 221.10(1), makes this omnibus motion seeking to dismiss the accusatory instrument as facially insufficient, and on speedy trial grounds. The People oppose the motion. For the reasons that follow, the motion to dismiss on speedy trial grounds is granted.

The defendant first contends that the accusatory instrument should be dismissed for facial insufficiency because the People failed to submit a laboratory report confirming the presence of marihuana in the substance recovered by the police in this case. However, since the People have now submitted a laboratory report confirming the presence of marihuana in the substance recovered, the defendant's motion to dismiss for facial insufficiency on this ground is denied.

The defendant further contends that even if the People have now submitted a lab report, more than 60 days have elapsed since the commencement of this action, and therefore the accusatory should be dismissed on speedy trial grounds.

The accusatory instrument in this case was filed with the Court on August 4, 2004. The People submitted a lab report converting the misdemeanor complaint to an information on December 1, 2004, well over 60 days following the filing of the accusatory instrument on August 4, 2004. However, the People assert that much of this time period is excludable, as adjournments were taken at the defendant's request.

The point of commencement of an action for speedy trial purposes is the filing of the first accusatory instrument (People v Lomax, 50 NY2d 351(1980); see also People v Osgood, 52 NY2d 37). Pursuant to CPL 30.30(1)(c), the People in this case were required to be ready for trial within sixty days of the commencement of the criminal action. The burden is on the People to show their entitlement to statutory speedy trial exclusions for pre-readiness delays (People v Luperon, 85 NY2d 71 (1995)). In connection with this motion, the Court has examined the minutes for each of the adjourned dates.

This action was commenced on August 4, 2004, the date the accusatory was filed with the Court. The matter was adjourned for one day for the assignment of [*2]counsel to the defendant. This one day period is excludable, as the defendant was without counsel "through no fault of the court" (CPL 30.30(4)(f); People v Woodward, (4th Dept 1995)).

The matter next appeared on the calendar on August 5, 2004, at which time the defendant was assigned counsel and arraigned. The matter was then adjourned at defense counsel's request until August 10, 2004. This five day time period is therefore also excludable (CPL 30.30(4)(b)). On August 10, 2004, the case appeared on the calendar, at which time it was adjourned until October 5, 2004 as the next available date for the jury pre-trial calendar. On October 5, 2004, the matter was again adjourned, to be placed on the jury pre-trial calendar on December 1, 2004.

Since the adjournments that occurred from August 10, 2004 to October 5, 2004 and from October 5, 2004 to December 1, 2004 were not expressly consented to by the defendant on the record, these time periods are chargeable to the People. Delays caused by the court, such as delays in arraignment or other court congestion, do not excuse the People from timely declaring their readiness for trial (People v Clark, 174 Misc 2d 324 (App. Term 2d Dept 1997); People v Smith, 82 NY2d 676, 678 (1993))."[C]onsent to an adjournment must be clearly expressed by the defendant or defense counsel to relieve the People of the responsibility for that portion of the delay" (People v Liotta, 79 NY2d 841, 843 (1991); see also People v Clark, supra). Here, the People did not convert the complaint to an information by filing a lab report until well over 60 days after the commencement of the action, and the defendant did not expressly consent to the court scheduled adjournments.

Since the People did not state their readiness for trial within the required time period, and did not demonstrate that the adjournments taken were excludable, the information must be dismissed on speedy trial grounds.

This constitutes the Decision and Order of this Court.

Dated:January 19, 2005

Mount Vernon, New York

____________________________________________

HON. ADAM SEIDENAssociate City Judge of Mount Vernon

To:Westchester County District Attorney

Mount Vernon branch

Elias Steven Gootzeit, Esq.

Attorney for Defendant

351 Bedford Avenue [*3]

Mt. Vernon, New York 10553