People v Morales

[*1] People v Morales 2006 NY Slip Op 50572(U) [11 Misc 3d 1075(A)] Decided on April 5, 2006 Justice Court, Village Of Hastings-on-Hudson, Westchester County DiSALVO, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 24, 2006; it will not be published in the printed Official Reports.

Decided on April 5, 2006
Justice Court, Village of Hastings-on-Hudson, Westchester County

People of the State of New York, Petitioners,

against

Enrique Morales, Defendant.



CR 1835

JOSEPH A. DiSALVO, J.

For the reasons set forth below, this Court:

1)grants Defendant's motion, pursuant to Criminal Procedure Law §240.70(1), for an order precluding the People from offering at trial certain evidence that the People failed to produce and from calling certain witnesses whose names the People failed to produce following this Court's Decisions and Orders dated February 11, 2004, May 30, 2005, and June 15, 2005;

2) grants Defendant's motion, pursuant to CPL §170.30(1)(e), for an order dismissing the accusatory instruments filed against Defendant upon the ground that he has been denied his right to a speedy trail as guaranteed by the Sixth Amendment of the United States Constitution and by CPL §30.20 and 30.30; and

3)denies Defendant's motion, pursuant to CPL §170.30(1)(g) and §170.40 dismissing all charges filed against Defendant upon the ground that the conviction or prosecution of Defendant would constitute or result in injustice.

Procedural History [*2]

On July 3, 2003, at 2:43 AM, while traveling northbound on the Saw Mill River Parkway near Ravensdale Road in Hastings-on-Hudson, Defendant was stopped by New York State trooper Edward J. Reich, was arrested, and was charged with four offenses:

a.)Driving while Intoxicated, a misdemeanor, in violation of Vehicle and Traffic Law ("VTL") §1192 (3);

b.)Driving with a Blood Alcohol Content more than .08%, a misdemeanor, in violation of VTL §1192 (2);

c.)Speeding at the rate of 76 miles per hour in a zone in which the maximum is 50 mph, a traffic infraction in violation of VTL §1180 (D); and

d.)Operating a vehicle without a license, a traffic infraction in violation of VTL §509 (1).

Defendant entered a plea of Not Guilty in this Court on July 16, 2003.

By Demand to Produce dated July 23, 2003, Defendant requested 64 categories of material from the People. By another demand, also dated July 23, 2003, Defendant requested that the People provide a Bill of Particulars.

The People failed to respond or to object to either the Demand Produce or the Demand for Bill of Particulars within 15 days of their service. Instead, the People announced in Court on August 27, 2003, approximately one month after service of the two Demands, that the People would provide "open file discovery." Said discovery occurred on September 22, 2003. At that time, no copies of the materials were provided to Defendant or made by Defendant.

By Notice of Omnibus Motion dated September 23, 2003, Defendant moved to compel disclosure, to compel a Bill of Particulars, and to suppress evidence. Opposition papers were submitted on October 15, 2003 and Reply papers on October 27, 2003. The motion was argued on November 19, 2003.

On February 11, 2004, this Court in large part granted Defendant's motion and directed the People:

to produce a separately numbered and complete written response to each demand of Defendant contained in his July 23, 2003 Demand; and

to produce copies of the items responsive to the Demand, subject to conditions with respect to the costs of same. [*3]

As to the Demand for a Bill of Particulars, the Court directed the People: to provide a Bill of Particulars to Defendant with respect to all requests except the demand for names and addresses of witnesses, which, instead, should be provided by the People in response to Demand No.48 in the Discovery demand.

The People produced a minimally adequate Bill of Particulars. Thus, their response to that Demand is not the subject of the current application.

With respect to document production, however, the People gave patterned responses including objection to requests [although the People had missed the earlier opportunity to submit timely objections and despite this Court's order to respond] and the People failed to produce any copies of any documents or identify any witnesses. The People's failures came despite this Court's order directing specific responses and delivery of copies at the People's expense [up to $100 calculated at 25 per copy].

On April 6, 2004, Defendant again brought a motion before this Court with respect to the People's failure to provide documents or to list their witnesses. People again did not use the opportunity to provide copies and, instead, in their memorandum of law but not in any affidavit, stated that they had thought that here would be a return date at which the documents would be produced.

On May 30, 2005, although the Court was inclined not to give the People any further opportunity to respond, it granted the People one such final opportunity, failing which a Preclusion Order would stand as to 47 specific items not addressed with a response or a document. The Court ordered that the People would be precluded from introducing evidence with respect to the 47 specified, demanded items if the People failed to deliver responses by 7 p.m. on June 15, 2005.

On June 15, 2005, the People produced a package of photocopies, held together with a large clip, but containing no list of what was attached and no numbering or identification of the relationship between what was demanded and what was produced. The People's response was wholly inadequate, once again, and not what is the "better practice" according to the Court of Appeals, which has stated: "We note that the better practice is for the prosecutor to provide to the defense attorney and the court a list or some other means of identifying the materials turned over" People v. Jenkins, 98 NY2d 280 [at 283, footnote 2], 98 NY2d 280 (2002).

In the Jenkins case, Chief Judge Kaye, in dissent, weighed in on the same issue, by describing repeated specific requests and the People's alleged turnover of hundreds of pages of unidentified, [*4]undifferentiated material in two thick envelopes and by characterizing such turnover as "no way for the People to discharge their serious obligation to turn over documents. I see no excuse for failing to make timely document production, without burdening the parties or the courts with the need for orders. I see no excuse for failing to create some sort of readily verifiable record of what has been turned over, by simple measures like numbering pages and listing documents. What is at stake is simply too important for anything less," Jenkins, at 288 [emphasis supplied].

The People in this matter before this Court have failed to reply to or to dispute Defendant's observation that the People failed to provide any such identification of the contents of the package

after this Court observed their turnover of the package of clipped papers on June 15, 2005 and orally directed the People to provide such a separate list.

As a result of the People's failures, the following periods of time elapsed when the People truly were not ready for trial because of their failure to produce copies [after open file discovery], or their failure to produce documents as ordered by this Court and their inability to produce evidence required for prosecution of the charges:

DatesApprox. #

of monthsPendency of matters

9-22-03 to 11-19-032period between "open file discovery" and the return date of the first motion

2-11-04 to 4-21-042.3period between first Decision and the return date for Defendant's second motion

5-30-05 to 11-21-055.7period between second Decision and the return date for Defendant's third motion.

___

10.0 months

Criminal Proc. Law §30.30(4) requires that a Court exclude from the time period by which the People must be ready for trial a "reasonable period of delay" resulting from a defendant's motion with respect to discovery. In judging the People's readiness for trial, this court shall not exclude all of the above time periods because the People should have turned over materials and copies during "open file discovery" and did not, thereby placing Defendant in the position of having to demand same by motion; and because the People thereafter failed to comply with the orders of this Court in turning over items once Defendant's motions were granted. This Court holds that the first period above, the time during which Defendant first moved, should be excluded as a reasonable period, and that the remaining eight months of delay must be attributed to the People's failures.

[*5]The Current Application

The Motion to Preclude

On May 30, 2005, this Court ordered preclusion for the materials and information not supplied to Defendant unless the People provided same by June 15, 2005. Because the People failed to produce evidence with respect to the chemical testing of Defendant, this Court on June 15, 2005 noted that the preclusion order stood in that regard. Accordingly, the People's charge against Defendant for driving while intoxicated, with a blood alcohol content in excess of .08, under Vehicle & Traffic Law §1192(2), must be and hereby is dismissed for the People will be unable to prove the charge without the foundational documentation. It should be noted that, in their papers in opposition to this current motion, the People note that they did not turn over calibration records regarding the breath alcohol analysis and that, therefore, they withdraw the §1192(2) charge.

As to the remaining charges, common law driving while intoxicated [V&T 1192(3)], speeding [V&T 1180(D)], and operating a vehicle without a license [V&T 509(1)], the People are precluded from introducing into evidence the police officers' notes of the observations of Defendant, since the People failed to comply, although so ordered, with Defendant's demands 54, 60, and 63.

In addition, because the People failed to produce a list of persons that the People will or may call as witnesses, as this Court twice ordered [on Feb. 11, 2004, and on May 30, 2005], the People hereby are precluded from calling any witness other than the arresting officer, Det. Reich, whose names appears in the accusatory instruments.[FN1]

The Motion to Dismiss on Speedy Trial Grounds

Defendant moves to dismiss on the grounds that the People were not truly ready for trial, in that they had in their possession none of the foundational requirements for the introduction of chemical tests relating to the charge that Defendant drove while intoxicated. As is evident from the People's failure to provide such documentary evidence, and their eventual withdrawal of the charge of driving while blood alcohol content exceeded .08 percent [V&T 1192(2)], the People were not prepared to proceed to trial in that regard. As set forth above, the People are charged with eight months of time, which was calculated without charging time for this Court's deliberations; rather, the time is composed of the motion practice necessitated by the People's failures to comply with this Court's directives. Had the People complied with this Court's first decision, on February 11, 2004, the second and third written motions [and the oral application on June 15, 2005] would not have been necessary.

The charges against Defendant included two misdemeanor charges of Driving While Intoxicated, both misdemeanors, punishable by a fine of not less than $500 and not more $1,000 or [*6]by imprisonment for not more than one year in a penitentiary or county jail, or by both [V&T 1193(b)]. CPL §30.30(1)(c) required that the People be prepared to try the misdemeanors and the other charges within ninety (90) days of the commencement of the criminal action: "Except as otherwise provided in subdivision three, a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within: ..... (b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which isa misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony..." CPL §30.30(1)(c).

Because the People were not truly ready for trial on the V&T 1192(2) charge, and because the lapse of readiness exceeded ninety (90) days from the commencement of the action [initial appearance date and plea date: July 16, 2003], and in fact was closer to eight months as outlined above, CPL §30.30(1) mandates this Court's granting of Defendant's motion pursuant to §170.30 to dismiss the charges on speedy trial grounds. See People v. Kendzia, 64 NY2d 331, 476 NE2d 287, 486 NYS2d 888 (1985) and People v. Blunt, 189 Misc 2d 471, 732 NYS2d 852 (Sup. Ct. Albany Co. 2001). Accordingly, the three remaining charges against Defendant [V&T 1192(3), 1180(D), and 509(1)] are dismissed.

Motion to Dismiss in the Interests of Justice

The People, in their opposition to this portion of Defendant's motion, correctly recite additional factors that Defendant did not address when Defendant argued for dismissal of the charges against him in the interests of justice, said factors including, among others, the seriousness and circumstances of the alleged offense and the evidence of guilt. Consideration of such factors highlights how regrettable was the failure on the People's part to comply with this Court's previous orders that lead eventually to the Preclusion Order and the Order dismissing the case on speedy trial grounds. Nevertheless, because of the existence of such factors, the Court denies the portion of Defendant's motion that seeks dismissal in the interests of justice.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 5, 2006

______________________________________

Joseph A. DiSalvo [*7]

Village Justice C:\htformat\f5057260.txt

Footnotes

Footnote 1:Det. Reich's identity as a witness was confirmed by the People in a memorandum of law [again not in an affidavit] which they submitted in opposition to this motion.