People v Neal
Annotate this CaseDecided on December 6, 2005
County Court, New York County
THE PEOPLE OF THE STATE OF NEW YORK
against
EDWARD A. NEAL, Defendant.
05-121
JAY D. CARR, ESQ.
Special Prosecutor
Cattaraugus County, New York
For the People
STEVEN A. WRIGHT, ESQ.
2656 West State Street
Olean, New York 14760
Larry M. Himelein, J.
This case presents the question of how far the holding in People v. Smietana (98 NY2d 336, 746 NYS2d 678 [2002]) can be extended.
On October 16, 2004, in the Town of Ashford, defendant was arrested for DWI and Failure to Keep Right. When a DMV check showed a previous conviction, a felony complaint was filed charging the DWI as a felony. Defendant was arraigned and the case was adjourned to November 18, 2004 for defendant to appear with counsel.
On or about October 29, 2004, defendant retained an attorney. Counsel, on that date, filed with the court a notice of appearance and a demand for all the paperwork and sent a copy to the assistant district attorney that handles Ashford Town Court. On November 18, 2004, after speaking with the court clerk, counsel faxed the court a letter, again with a copy to the assistant district attorney, waiving a preliminary hearing. A hard copy was also sent to both the assistant district attorney and the court. On April 21, 2005, Town Court forwarded the paperwork to County Court. Why the case was not forwarded to County Court for five months is not addressed [*2]in the papers.
On May 26, 2005, defense counsel waived 30.30 time until June 20, 2005 in an attempt to negotiate a plea. On June 15, 2005, counsel wrote the District Attorney revoking the remaining time on the 30.30 waiver because his client had rejected the plea offer.
On July 21, 2005, the District Attorney sent defense counsel a copy of the indictment and the statement of readiness and notified him that arraignment was scheduled for August 1, 2005. Defendant was arraigned on that date and the case has proceeded from that point with motions and the appointment of a special prosecutor when the District Attorney's office discovered a conflict. However, on November 4, 2005, a scheduled hearing was postponed until November 10, 2005 because the special prosecutor failed to appear.
The speedy trial clock began to run on October 16, 2004, when the felony complaint was filed (People v. Osgood, 52 NY2d 37, 436 NYS2d 213 [1980]; People v. Lomax, 50 NY2d 351, 428 NYS2d 937 [1980]). Therefore, the People had 182 days in which to announce their readiness for trial (People v. Cortez, 80 NY2d 201, 590 NYS2d 9 [1992]; People v. Militello, 199 AD2d 1053, 606 NYS2d 115 [4th Dept. 1993]).
The statement of readiness was filed with the court 278 days after the action was commenced. The period from November 4, 2005 to November 10, 2005 must be added to that, bringing the total time chargeable to the People to 284 days. Thus, the People must be able to exclude 102 days to have timely stated their readiness.
The adjournment from October 16, 2004 to November 18, 2004, a period of 33 days, is excludable as an adjournment for defendant to obtain an attorney (CPL 30.30 [4] [f]; People v. Woodward, 219 AD2d 837, 631 NYS2d 965 [4th Dept. 1995]; People v. Reinhardt, 206 AD2d 913, 616 NYS2d 313 [4th Dept. 1994]; People v. Stefano, 159 AD2d 1016, 552 NYS2d 727 [4th Dept. 1990]). The adjournment from May 26, 2005 to June 20, 2005, a period of 25 days, is excludable as a requested or consented to adjournment to negotiate a plea (CPL 30.30 [4] [b]); People v. Waldron, 13 AD3d 1074, 787 NYS2d 547 [4th Dept. 2004]; People v. Jenkins, 302 AD2d 978, 754 NYS2d 796 [4th Dept. 2003], lv. denied 100 NY2d 562, 763 NYS2d 819 [2003]). Defendant contends that he rescinded the last five days of the waiver period after he rejected the plea. Whether such a recission should be effective is dubious since the district attorney might have relied on the waiver when scheduling cases for the Grand Jury. Fortunately, however, that question need not be resolved here.
Deducting the excludable periods of 33 and 25 days from the 284 chargeable days brings the chargeable period to 266 days, well over the 182 allowed. Nonetheless, the prosecutor attempts to avoid a dismissal on the grounds that Town Court did not divest the case to County Court until April 21, 2005 and thus, the entire period before the divesture is excludable.
In People v. Smietana (98 NY2d 336, 746 NYS2d 678 [2002]), the Court of Appeals held that the "exceptional circumstances" exclusion in CPL 30.30 encompasses the period of time during which the People are unaware of the charges. Smietana was consistent with previously decided cases from this Department (see, People v. Mickewitz, 210 AD2d 1004, 620 NYS2d 636 [4th Dept. 1994], lv. denied 85 NY2d 977, 629 NYS2d 737 [1995]; People v. LaBounty, 104 AD2d 202, 482 NYS2d 652 [4th Dept. 1984]). Relying on these cases, the special prosecutor argues that the time between defendant's arrest and the Town Court's divesture of the case to County Court is excludable. [*3]
The court would agree with the special prosecutor but for one fact present here that was not present in Smietana, Mickewitz and LaBounty. Here, the prosecutor cannot claim that the District Attorney's office was unaware of the charges. On October 29, 2004, the assistant district attorney was sent a copy of counsel's notice of appearance, with a reference to the next scheduled court date, and on November 18, 2004, the assistant district attorney was sent a copy of the letter waiving a preliminary hearing. Thus, the district attorney's office was aware of the felony arrest, as well as the waiver of a preliminary hearing, notwithstanding Town Court's inexplicable failure to forward the papers to County Court.
The district attorney must be charged with knowledge of the case if an assistant district attorney is aware of it. In People v. Ausserau (77 AD2d 152, 432 NYS2d 940 [4th Dept. 1980]), the Appellate Division, in connection with a Brady issue, held that "information possessed by one member of [the district attorney's] office is chargeable to the entire office." In People v. Simmons (36 NY2d 126, 365 NYS2d 812 [1975]), the Court of Appeals held, again with respect to a Brady issue, that information possessed by an assistant district attorney is considered to be possessed by the entire office (see also People v. Wright, 86 NY2d 591, 635 NYS2d 136 [1995]); Santabello v. New York, 404 US 257 [1971]).
Accordingly, the holdings of Smietana, Mickewitz and LaBounty are not applicable here and 226 days are chargeable to the People. That being more than the 182 days applicable in this case, the indictment must be dismissed. Counsel for defendant should submit an order on notice to the special district attorney.
Dated: Little Valley, New York
December 6, 2005
_________________________
HON. LARRY M. HIMELEIN
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