People v Brown
Annotate this CaseDecided on June 24, 2005
Criminal Court of the City of New York, New York County
THE PEOPLE OF THE STATE OF NEW YORK
against
STEVEN BROWN, Defendant.
2005NY000722
Defendant was represented by Gerard M. Deenihan, Esq., Legal Aid Society, 49 Thomas Street, New York, NY 10013
The People were represented by ADA Christopher DiMase, NY County DA's Office, 1 Hogan Place, New York, NY 10013
Anthony J. Ferrara, J.
Defendant is charged with one count of attempted assault in the third degree (PL 110/120.00 [1]) and one count of harassment in the second degree (PL 240.26 [1]). By Notice of Omnibus Motion dated April 19, 2005, he has moved for an order: (1) dismissing the charges based on the People's failure to be ready for trial pursuant to Criminal Procedure Law § 30.30 (1) (b), (2) suppressing the defendant's noticed statements, or in the alternative, granting a Huntley/Dunaway hearing, (3) precluding the introduction at trial of unnoticed statements and identification testimony, (4) precluding the use of his prior criminal history or prior uncharged criminal, vicious or immoral conduct at trial, and (5) directing the People to provide a Bill of Particulars and additional discovery. Defendant's omnibus motion is decided as follows:
Speedy Trial Motion
Defendant's motion to dismiss the charges on speedy trial grounds is denied.
The defendant was initially charged with two counts of assault in the third degree (one count of PL 120.00 [1] and one count of PL 120.00 [2]), both A misdemeanors, in addition to the current charges. He was arraigned on that misdemeanor complaint on January 2, 2005. That complaint was never converted into an information. Instead, on March 7, 2005, the People filed a superceding information dismissing the assault charges and leaving the attempted assault charge, a B misdemeanor, and the harassment charge, a violation. When a defendant is charged with an A misdemeanor, the People must be ready for trial within ninety (90) days of commencement of the criminal action, absent excludable time (CPL 30.30 [1][b]). Although the A misdemeanor charges here were dismissed and the top charge is now a B misdemeanor, the time within which the People must be ready for trial remains ninety (90) days because this reduction is not an exception contemplated in Criminal Procedure Law § 30.30 (5) (see also People v Cooper, 98 NY2d 541, 546 [2002]).
Defendant argues that ninety-nine (99) days are chargeable to the People, while the People argue that only sixty-three (63) days are chargeable. The court finds that sixty-four (64) days are chargeable to the People, as set forth below.
DATESNUMBER OF DAYS CHARGED
January 2, 2005 - February 17, 200546
February 17, 2005 - April 11, 200518
April 11, 2005 - June 20, 20050
[*2]January 2, 2005 - February 17, 2005
Defendant was arraigned on January 2, 2005 and the case was adjourned to February 17, 2005 for the People to file a supporting deposition.
February 17, 2005 - April 11, 2005
The People did not file a supporting deposition on February 17, 2005 and the court adjourned the case to April 11, 2005 for the People to file either a supporting deposition or a superceding information. On March 7, 2005, the People filed a superceding information and certificate of readiness off calendar. The defense, citing People v England (84 NY2d 1 [1994]), argues that because the defendant was not arraigned on the superceding information until April 11, 2005, the certificate of readiness is deemed illusory and the entire adjournment should be charged to the People. The People argue that only the time until the filing of the superceding information and certificate of readiness, eighteen (18) days, should be charged to them.
In People v England, the Court of Appeals upheld dismissal of an indictment where the indictment was handed up, and where the People simultaneously declared readiness, a full six months after the filing of the felony complaint (id., at 3-4). The court held that under People v McKenna (76 NY2d 59 [1990]), the People failed to do all that was required of them to bring the case to a point where it could be tried, because pursuant to the rule requiring arraignment of defendants upon indictment to take place upon two days notice to the defense (CPL 210.10), it would be impossible to arraign the defendant on the indictment within the six month speedy trial period where the indictment was handed up on the last day (England, at 4).
People v England, however, is limited to cases where it is impossible to arraign the defendant within the statutory speedy trial period solely due to the People's own conduct (see People v Goss, 87 NY2d 792, 794 [1996]). In People v Goss, the Court of Appeals clarified their holding in England, stating that England did not stand for the proposition that the People can never be ready for trial prior to the defendant's arraignment (id.). The court held that prior case law (People v Correa, 77 NY2d 930 [1991]; People v Cortes, 80 NY2d 201 [2001]) recognized that the People can be ready for trial prior to the defendant's arraignment, and because it was possible to arraign the defendants with the statutory period, the People's prearraignment statements of readiness were valid (Goss, at 796-797). The court further held that postreadiness delay in the scheduling of an arraignment after the People's declaration of readiness is not chargeable to the People, because arraigning a defendant on an indictment is exclusively a court function and not a delay attributable to the People (id., at 797).
This court agrees that here the People should be charged with eighteen (18) days for this adjournment, the time until they filed a superceding information and a certificate of readiness. Here, like in People v Goss, it was possible to arraign the defendant on the superceding information prior to the expiration of the statutory speedy trial period. The defendant had already been arraigned on the first misdemeanor complaint, and the court had already scheduled the next court appearance for April 11, 2005. Because arraignment of a defendant is a court function, and the criminal court is responsible for controlling its own calendar, this delay is not attributable to the People (see Goss, at 797).
April 11, 2005 - June 20, 2005
On April 11, 2005, the parties appeared in court, at which time the court directed the defense to file motions by May 31, 2005 and the People to respond to any motions by June [*3]20, 2005. The parties agree that this entire period is excludable.
Because the court finds that only sixty-four (64) days have elapsed, the defendant's motion to dismiss on speedy trial grounds is denied.
Motion to Suppress Defendant's Statements
Defendant's motion to suppress his statements is granted to the extent that a Huntley/Dunaway hearing is ordered.
Motion to Preclude Unnoticed Statements and Identification Testimony
Defendant's motion to preclude unnoticed statements and identification testimony is granted (CPL 710.30 [3]).
Sandoval Motion
Defendant's Sandoval motion is referred to the trial court.
Motion for a Bill of Particulars and Additional Discovery
Defendant's motion to compel a Bill of Particulars and for additional discovery is denied. The People's Voluntary Disclosure Form is sufficient.
To the extent not addressed herein, the remainder of the motions are denied.
The case is scheduled in Part C on August 1, 2005.
A copy of this decision is being mailed to both parties on June 24, 2005.
This opinion constitutes the decision and order of the court.
Dated:New York, New York
June 24, 2005
____________________________
ANTHONY J. FERRARA
Judge of the Criminal Court
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