People v White

[*1] People v White 2006 NY Slip Op 50523(U) [11 Misc 3d 1072(A)] Decided on March 21, 2006 District Court Of Nassau County, First District St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 21, 2006
District Court of Nassau County, First District

THE PEOPLE OF THE STATE OF NEW YORK,

against

MARK WHITE, Defendant.



22191/04

Norman St. George, J.

Defendant moves this Court to dismiss the information against him pursuant to C.P.L.§30.30(1). The People oppose Defendant's motion. Defendant is charged with one (1) count of violating Penal Law Section 215.50(3), Criminal Contempt, as a Class A misdemeanor.

The above entitled action has been pending since October 22, 2004. Since that time the Defendant has been represented by three (3) different attorneys and has filed numerous procedural motions. Defendant filed a motion to dismiss the information based on facial insufficiency, said motion was denied. Defendant filed a motion for a "So Ordered" subpoena, said motion was denied. Defendant filed a motion to vacate the temporary Order of Protection, said motion was never responded to by the People. The People contend that it has been the Defendant's filing of various motions which has caused the delay in this matter proceeding to Trial. Although the People are accurate in the contention that the numerous changes in attorneys and the numerous motions by the Defendant have caused most of the delay, there have also been substantial and significant delays attributable to the People in responding to Defendant's motions.

The People contend that no delay in responding to any of Defendant's motions should be attributed to the People pursuant to C.P.L. §30.30(4)(b). The People's reliance on C.P.L. §30.30(4)(b), for their authority is misplaced. This Court agrees that said section excludes "... periods of delay resulting from a continuance granted by the Court at the request of, or the consent of, the Defendant or his counsel." However, this Court holds that the making of a motion by a [*2]Defendant does not automatically make the adjournments thereafter excludable adjournments. Therefore, C.P.L. Section 30.30(4)(b) is inapplicable to support the People's argument.

C.P.L. §30.30(4)(a), governs motion practice adjournments. C.P.L. §30.30(4)(a) excludes in relevant part:

"a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to ... pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court" (emphasis added.)

The People's argument that no delay in their responding to the Defendant's motion should be chargeable to them is inconsistent with the plain language of C.P.L. §30.30(4)(a); i.e., a "reasonable period of delay" is excludable. To determine whether a delay is a "reasonable period" it is necessary to view the delay in light of the acceptable period of time regarding motion responses, and the reason for the delay. It has long been established that a response or Affirmation in Opposition to a motion must be submitted within eight (8) days after the filing of said motion (C.P.L.R. §2214 note 8), and within thirteen (13) days when the motion is served by mail (C.P.L.R. §2103(b)(2). Any further delay must be evaluated using that time period as a barometer.

A review of the Court file regarding the relevant adjournments reveals the following:

1. The adjournment from 12/14/04 to 1/7/05 (24 days) was at the People's request and is chargeable to the People (the time period from the Grand Jury voting a Prosecutors Information to the People filing a Certificate of Readiness for trial.)

2. On April 15, 2005, the Defendant filed a Motion to Dismiss the Information based on facial insufficiency. The case was adjourned to April 25, 2005, for the People to file an Affirmation in Opposition to Defendant's motion. On April 25, 2005, the People failed to file an Affirmation in Opposition to Defendant's motion and the case was adjourned at People's request to May 18, 2005. On May 18, 2005, the People again failed to file an Affirmation in Opposition to Defendant's motion and the case was adjourned at People's request to June 10, 2005. On June, 10, 2005, the People finally filed an Affirmation in Opposition to Defendant's motion. No reason was given by the People as to the delay in responding to Defendant's motion. Moreover, each time the People requested an adjournment beyond the first adjournment, this Court indicated that the time would be chargeable to the People until the Affirmation in Opposition to Defendant's motion was filed and served. This Court finds that the unexplained delay by the People for almost two (2) months in responding to Defendant's motion, which was neither complex nor novel, was unreasonable and unacceptable. Therefore, the People are charged with the time from May 18, 2005 to June 10, 2005 (23 days).

3. On July 20, 2005, the Defendant filed a Motion for a "So Ordered" subpoena. The case [*3]was adjourned to August 9, 2005, for the People to file an Affirmation in Opposition to Defendant's motion. On August 9, 2005, the People failed to file an Affirmation in Opposition to Defendant's motion and the case was adjourned at People's request to September 8, 2005. On September 8, 2005, new counsel was appointed to represent the Defendant and the motion was held in abeyance until October 7, 2005, so that Defendant's new attorney could decide whether he would adopt the former attorney's motion. On October 7, 2005, Defendant's new attorney adopted the former attorney's motion and the case was adjourned again to October 31, 2005, for the People's response. On October 31, 2005, the People again failed to file an Affirmation in Opposition to Defendant's motion and the case was adjourned at People's request to November 14, 2005. On November 14, 2005, the People filed an Affirmation in Opposition to Defendant's motion. No reason was given by the People as to the reason for their delay in responding to Defendant's motion, and each time the People requested an additional adjournment this Court indicated that the time would be chargeable to the People until the Affirmation in Opposition to Defendant's motion was filed and served. This Court finds that the unexplained delay by the People for almost four (4) months (excluding the time period during which the motion was held in abeyance) in responding to Defendant's basic motion for a "So Ordered" subpoena, was completely intolerable. Consequently, the People are charged with the time from September 8, 2005 to October 7, 2005 (29 days) and from October 31, 2005 to December 14, 2005 (14 days).

4. On December 16, 005, Defendant filed the instant Speedy Trial motion to dismiss this matter. The case was adjourned to January 10, 2006, for the People to file an Affirmation in Opposition to Defendant's motion. On January 10, 2005, the People failed to file an Affirmation in Opposition to Defendant's motion and the case was adjourned at People's request to January 27, 2006. Astonishingly, on January 27, 2006, the People again failed to file an Affirmation in Opposition to Defendant's motion and the case was adjourned at People's request to January 30, 2006. On January 30, 2006, the People filed an Affirmation in Opposition to Defendant's motion. No reason was given by the People as to any of the adjournment requests. Each time the People requested an additional adjournment this Court indicated that the time would be chargeable to the People until the Affirmation in Opposition to Defendant's motion was filed and served. This Court finds that the unexplained delay by the People for over thirty (30) days in responding, ironically, to Defendant's Speedy trial motion was unreasonable. The People are charged with the time from January 16, 2006 to January 30, 2006 (14 days).

As of January 20, 2006, the People have taken One Hundred and Four (104) days. Hence, Defendant's motion to dismiss docket 22191/04 is granted.



Dated: March 21, 2006

ENTER:

____________________________________ [*4]

Norman St. George, District Court Judge

cc: Nassau County District Attorney's Office

Law Offices of Sean A. McNicholas