People v Goris

[*1] People v Goris 2005 NY Slip Op 51497(U) [9 Misc 3d 1111(A)] Decided on September 12, 2005 Criminal Court, New York County Weinberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 12, 2005
Criminal Court, New York County

The People of the State of New York

against

David Goris, Defendant.



2005NY014151

Richard M. Weinberg, J.

The defendant is charged with two counts of Criminal Mischief in the Fourth Degree and one count of Unlawful Imprisonment in the Second Degree. He has brought a motion to dismiss pursuant to CPL § 30.30, alleging that more than ninety days have passed since the commencement of this action without a declaration of readiness by the People. It is the People's burden to establish which contested periods of time are excludable. (People v Berkowitz, 50 NY2d 333). The Court charges the time as follows:

2/24/05: Defendant was arraigned and the case was adjourned to 3/24/05 for the filing and serving of two supporting depositions. This People correctly concede that this period is chargeable to them. (28 days)

3/24/05: The supporting depositions of the two complainants, Maria Deleon and Wanda Gonzalez, dated 3/3/05, were filed and served. Attached to the deposition of Maria Deleon was an affidavit of translation signed by Wanda Gonzalez and dated 3/3/05. This affidavit is captioned "People v David Goris" but contains an incorrect docket number. The case was adjourned for motion practice. This period is excluded pursuant to CPL §30.30(4)(a). (0 days)

5/26/05: Motions were decided and hearings were ordered. The People informed the Court that they had filed a wrong affidavit of translation. The Judge presiding on that date adjourned the case to 6/30/05 for the People to file and serve a corrected affidavit of translation or to provide clarification. The People now argue that this time should be excluded because an affidavit of translation is not required by the Criminal Procedure Law, an incorrect docket number should not invalidate the affidavit, and the complaint had been properly converted on 3/24/05 when the supporting depositions had been filed. Even were this Court to agree with the People's assertions, those assertions do not establish that this adjournment is excludable. To the contrary, the People's assertions establish that there was no impediment to moving forward to hearing and trial. It was therefore incumbent upon them to announce their readiness for trial in [*2]order to toll the speedy trial clock. The People have cited neither a CPL §30.30 (4) exclusion nor any case law which would justify the excludability of this period. In the absence of either statutory or case law support, the People are charged unless they have declared their readiness for trial. The Court notes that the People have never declared such readiness in this case. Also unavailing is the People's argument that the period should be excluded based on a purported comment by the Calendar Judge that the period would be excluded. The determination of excludability is made by the CPL §30.30 motion Court "when the defendant moves to dismiss on speedy trial grounds, and not at the time the adjournment is granted." People v Berkowitz, supra, at 349. (35 days)

6/30/05: The case was again adjourned by a different Calendar Judge for the filing of a corrected affidavit. While the People again argue that this adjournment "was in error" for the reasons stated above, such an argument does not identify any statutory exclusion upon which the People rely nor does it relieve the People of their obligation to announce their readiness for trial. In the absence of one or the other, time is charged. (29 days)

The People are charged with 92 days. Since this exceeds the 90 day statutory limit, the defendant's motion to dismiss is granted.

This constitutes the decision and order of the Court.

Dated: September 12, 2005___________________________

New York, New YorkJudge of the Criminal Court