People v Zaccaria
Annotate this CaseDecided on February 28, 2006
Supreme Court, Franklin County
The People of the State of New York
against
Marc A. Zaccaria, Defendant.
I-133-2004
Robert G. Main, J.
The defendant is charged with possession of 30,000 or more cigarettes in unstamped packages, for the purpose of sale; attempting to evade or defeat the cigarette tax; and trademark counterfeiting in the second degree. He has moved for the dismissal of the pending indictment upon a variety of grounds.
I. Summary of the Motions Pending
A. Motion to Dismiss upon Speedy Trial Grounds and to Reconsider
Earlier Decision Regarding Alleged Defective Grand Jury
Proceedings
Defendant first moves (1) for dismissal of the indictment, as untimely, pursuant to Criminal Procedure Law
§ 30.30 (1) (a) and (2) for reconsideration of that part of the Court's earlier decision, deciding the omnibus motion, which addressed defendant's contention, pursuant to Criminal Procedure Law § 210.35 that the Grand Jury proceedings were defective.
The People responded by affidavit dated May 27, 2005. Defendant then submitted a reply affirmation dated June 9, 2005, and a supplemental affirmation dated July 11, 2005. [*2]
After a review of the moving and responding papers, the Court determined that questions of fact existed with regard to the motion for dismissal pursuant to Criminal Procedure Law
§ 30.30 (1) (a), and a hearing was scheduled. The hearing commenced on July 11, 2005, continued on August 1, 2005, and finished on August 15, 2005. The parties then submitted closing arguments, in writing, each dated August 19, 2005.
The People, thereafter, moved to reopen the Criminal Procedure Law § 30.30 hearing for the limited purpose of admitting into evidence the Grand Jury testimony of the defendant. The People's motion was dated September 6, 2005. The defendant filed an affidavit, dated September 21, 2005, in opposition and in support of a cross-motion to reopen the Wade hearing which was held in this matter on April 13, 2005; May 9, 2005; and May 10, 2005. The Court, by decision and order dated November 7, 2005, granted the People's motion and denied the defendant's cross-motion. As a result, the Criminal Procedure Law § 30.30 hearing was re-opened on November 17, 2005, for the limited purpose of entering into evidence the defendant's testimony before the Grand Jury. Thereafter, the parties submitted supplemental closing arguments, each dated December 2, 2005.
B. Motion to Dismiss Relative to Alleged Defective Indictment, Insufficient Evidence Before the Grand Jury, and in Furtherance of Justice
Separately, defendant filed a motion to dismiss the indictment pursuant to Criminal Procedure Law § 210.20 (1) (a),
§ 210.20 (1) (b) and § 210.40. The motion was dated August 15, 2005, and the People responded by an affidavit dated August 25, 2005.
II. The "Speedy Trial" Prong of the Motion to Dismiss
A. The Statutory Provisions and the Parties' Stipulations
The Court will first address defendant's motion for dismissal pursuant to Criminal Procedure Law § 30.30 (1) (a). That statute provides that such a motion to dismiss "must be granted where the people are not ready for trial within: (a) six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony".
Case law provides that the clock for dismissal begins [*3]to run the day after an action is commenced (see, People v Stiles, 70 NY2d 765). At the commencement of the hearing on July 11, 2005, the parties stipulated that the defendant was arrested on November 6, 2003, and arraigned later that day in Fort Covington Town Court. This is the date of commencement. The parties further stipulated that six months from the date of commencement is comprised of 182 days.
As a result, the People had 182 days within which to announce readiness for trial. However, Criminal Procedure Law
§ 30.30 (4) contains several exclusions of time which must be considered in computing the time within which the People must be ready for trial.
The parties further stipulated, on the first day of the hearing, that the first indictment in this matter, Indictment I-92-2004, was filed on June 15, 2004, and the People's memorandum of readiness was filed and served upon the defendant on July 2, 2004. The parties also stipulated that Indictment I-92-2004 was dismissed on September 3, 2004, by stipulation of the parties and that the second Indictment, I-133-2004, was filed on September 22, 2004. The parties further stipulated that the People, thereafter, filed and served their second memorandum of readiness on October 20, 2004.
B. The Parties' Contentions and the Hearing
In his moving papers, the defendant's first argument is that the 215 days from the date of his arraignment on November 6, 2003, until the defendant appeared personally in Fort Covington Town Court on June 8, 2004, is chargeable to the People. In their response, the People argue that 133 of the 215 days must be excluded and only the 82 days from November 6, 2003, until defendant's first court date in Fort Covington Town Court on January 27, 2004, actually count against the People's 182 days.
If the defendant's argument is correct, and all 215 days count toward the People's speedy trial time, then the matter will have to be dismissed pursuant to Criminal Procedure Law
§ 30.30 (1) (a). The Court's review of the motion papers disclosed issues of fact regarding this prong of the motion. As a result, a hearing was scheduled and the Court did, in fact, conduct a hearing that continued over three days in July and August of 2005.
At the hearing, the People called, as witnesses, Fort Covington Town Justice Clayton Almond; Fort Covington Town Court Clerk Louise Johnston; and the Special Assistant District [*4]Attorney assigned to the matter, Christine Becker Stevens, Esq. The only witness called by the defendant was the defendant himself. It became clear during the proceedings that a determination of whether the 133 days should be excluded from the People's time would turn upon whether the defendant had been granted pro se status at arraignment in local court and was, in fact, representing himself.
The testimony at the hearing was that the defendant was arraigned in Fort Covington Town Court on November 6, 2003, posted bail on the following day, and was scheduled to appear in local court on January 2, 2004. This appearance was adjourned by the court and rescheduled for January 27, 2004, which date was adjourned to February 24, 2004. The February court date was adjourned to May 24, 2004, which appearance was also adjourned. Why these appearance dates were adjourned is at the heart of this motion.
The testimony also revealed that defendant filed a pro se motion to dismiss the matter, and the motion was scheduled to be heard in Fort Covington Town Court on June 8, 2004. The defendant did, in fact, appear on that date. This was the only scheduled court date at which the defendant physically appeared in local court following his arraignment. In addition, the defendant physically appeared on an unscheduled date, a date which none of the witnesses were able to provide. The testimony also revealed that the People never appeared in local court.
The People argue that the defendant contacted Judge Almond prior to, or on, his court appearance dates and requested adjournments in an effort to obtain counsel. The defendant, however, claims he was acting pro se and, pursuant to instructions from Judge Almond, contacted the judge prior to his scheduled court appearances to see if the People were ready for the defendant's requested felony hearing. The defendant argues that he did not request any adjournments and had no reason to do so because he was representing himself.
Criminal Procedure Law § 30.30 (4) (f) provides, "[i]n computing the time within which the people must be ready for trial pursuant to subdivisions one and two, the following periods must be excluded:
. . .
(f) the period during which the defendant is without counsel through no fault of the court; except when the defendant is [*5]proceeding as his own attorney with the permission of the court".
C. The People's Burden and the Failure to Meet That Burden
The People bear the burden of proving that certain periods of time are excludable from the 215 days at issue here (see, People v Figaro, 245 AD2d 300; People v Morgan, 259 AD2d 771). After listening to the testimony and reviewing the entered exhibits, this Court finds that the People did not meet their burden. The evidence presented by the People was simply not reliable, and they were unable to convince this Court that 133 days should be excluded from November 6, 2003, through June 8, 2004.
This case, already complicated, is further complicated by the unfortunate death of Fort Covington Town Justice Jerome Brockway on December 15, 2003. Judge Brockway arraigned the defendant on November 6, 2003, and set bail. What occurred at that arraignment is crucial to this motion. The defendant testified that at the arraignment he advised Judge Brockway that he wished to represent himself. He further testified that Judge Brockway asked him questions regarding his education and asked if he wanted a felony hearing. The defendant states that Judge Brockway granted him pro se status. He then allowed the defendant to argue the issue of bail and set bail in the matter. The defendant further detailed the exchange he had with Judge Brockway regarding a felony hearing as a result of which the two agreed that the hearing would be scheduled for January 2, 2004. Unfortunately, Judge Brockway passed away before that next court date.
To complicate matters, Judge Almond, who took over the case after the death of Judge Brockway, testified that the file he received did not contain an arraignment sheet or anything else to indicate the status of counsel. Thus, the Court is left to believe either the testimony of the defendant, who was present at the arraignment, or the testimony of the People's witnesses, who were not. Left unanswered is why the People failed to call the two New York State Police officers who, the defendant testified, were present when he was arraigned. It is reasonable to credit defendant's testimony in this respect as it is not disputed that he had just been placed under arrest and had not yet posted bail. In addition, if there was no arraignment sheet in the file inherited by Judge Almond, there is no record or proof that the defendant was ever fully and properly arraigned. Aside from the issue of the status of the defendant's representation, there are many other crucial matters which must be addressed at arraignment [*6](see, Criminal Procedure Law § 180.10). Given the importance of a proper and thorough arraignment, Judge Almond should have "re-arraigned" the defendant.
D. Analysis
The testimony of Judge Almond was crucial to the People's case. Unfortunately, Judge Almond's testimony was not reliable, and he, on more than one occasion, could not recall the events surrounding this matter. In addition, any notes that the judge made regarding this case are not reliable. Judge Almond testified that the defendant called him prior to each court appearance and that he had lengthy calls with the defendant. He also acknowledged having called the defendant himself on one occasion.
Most, if not all, of these telephone calls occurred at the judge's home. Judge Almond testified that he would make notes at home and then, sometimes after the passage of several days, make a record of these calls in his court file. As a result, his official court notes were not made contemporaneously with the telephone calls. In addition, and perhaps most troubling, Judge Almond made no notes of the substance of any of the conversations he had with the defendant.
Judge Almond's recollection was that the defendant called to state that he would not be able to appear on the scheduled court dates. He initially testified that he could not remember what the reasons were for the individual calls. "Q. And what did the defendant tell you per that phone call on the 27th of January, 2004?A. That for some reason he was not going to be there, he didn't have a ride or whatever, but he was not going to be there.Q. Do you remember the reason that he gave?A. No, I don't."
Court Transcript, July 11, 2005, at p. 21,
l. 16 - 22.
The judge gave very similar testimony with regard to the February 24, 2004, and May 24, 2004, court dates. At other points in his testimony, Judge Almond testified that the defendant had stated, at least once, that he wished for an [*7]adjournment to obtain counsel. However, People's Exhibit 5, a letter Judge Almond sent to the Franklin County District Attorney's Office, and which that office received on June 22, 2004, provides that the defendant's court dates of January 27, 2004, February 24, 2004, and May 24, 2004, were all adjourned and granted "by phone". In addition, at the bottom of the correspondence Judge Almond writes, "[o]n each of the adjournment of 1-27 - 2-24 and 5-24,04, the reason given was to obtain a attorney."
This sweeping statement does not comport with the testimony the judge provided. Further, Judge Almond could not remember writing the letter or who requested that he do so.
This Court acknowledges that local courts in rural towns do not sit often and that, often, as here, local magistrates receive and make court related telephone calls at their homes. There is nothing problematic about this in the abstract. However, Judge Almond's practice, in this matter, of failing to make any notes of the substance of the telephone calls with the defendant and of failing to make a contemporaneous record for his court file is problematic. This practice, coupled with Judge Almond's difficulty in remembering the details of the case, renders his testimony less than reliable and convincing.
The People were able to prove that the defendant did, from the date of his arraignment on November 6, 2003, through the month of May, 2004, consult with attorneys regarding his case. However, consulting with counsel and actually hiring an attorney for representation are two different things. Simply because the defendant spoke to several attorneys about his case does not change his status as a pro se defendant. The evidence at the hearing was that no attorney ever filed a notice of appearance in the matter on behalf of the defendant. The evidence does not support any conclusion that defendant was other than a pro se defendant.
The defendant himself testified that he called the Franklin County District Attorney's Office and Ms. Stevens on several occasions to discuss the case. He further testified that Ms. Stevens refused to speak with him on each call. Ms. Stevens confirmed this by her own testimony. "Q. ... Ms. Becker Stevens, did you have conversations with the defendant during that time period, January 27 to June 8?[*8]A. I had several phone calls from the defendant at my office but I wouldn't call them conversations.Q. And did he tell you that he was pro se?A. On the phone, yes, he said that he was acting pro se."
Court Transcript, August 15, 2005, at p.83 -
84, l. 20 - 25 and l. 1 - 2.
Special Assistant District Attorney Stevens went on to testify that she made no further inquiry of Judge Almond regarding defendant's statement that he was acting pro se. She testified that she refused to speak with him because she had been told that the defendant had invoked his right to counsel at the time of his arrest. When questioned further as to whether the defendant had invoked his right to counsel in court, Ms. Stevens stated that she did not know (see, Court Transcript, August 15, 2005, p. 84 - 85.)
This Court well understands a prosecutor's general reluctance to converse or correspond with a defendant whom she believes may be represented by counsel particularly where the defendant is related to have invoked the right to counsel at an initial or early stage of a criminal action. But it must be recognized that an indication of an intent to obtain counsel is not the same as being represented by counsel. Where, as here, a prosecutor persists in a failure to respond to communications from a defendant who persists in his indication that he represents himself, the prosecutor's persistence may redound to the People's detriment. Where, as here, after a lengthy interval, there is no indication that anyone has entered a notice of appearance on the defendant's behalf, and given the defendant's adamant position, it would behoove the prosecutor to take affirmative steps to bring the matter to the attention of the court and ask for direction.
The defendant testified that he called Judge Almond prior to each scheduled court date because Judge Almond advised him to do so. He stated, "and he put it down for January 27 and stated that I should call him beforehand on that day before I come up because he understood it was such a long ride and to determine whether or [*9]not I would be given my hearing that day. He would be waiting to hear from the district attorney's office."
Court Transcript, August 15, 2005, at
p. 95, l. 18 - 24.
The defendant went on to state that he did, if fact, call on January 27, 2004, and that he was informed that Judge Almond had not heard from the prosecutor and that the matter would be adjourned. He testified that this happened again with the next two scheduled court dates. He testified that on each date Judge Almond advised him that he had not heard anything from the People and that the matter would be adjourned. No evidence was presented that the defendant expressly consented to these adjournments (see, People v Liotta, 79 NY2d 841).
Judge Almond's testimony confirms the fact that the court had not had any contact with the People. "Q. All right. Ms. Becker asked you if the DA's office ever asked you for an adjournment, correct? Do you recall that?A. Yes.Q. They never did, right?A. No.Q. Because they never called you, correct?A. On this case no, I don't believe it.Q. At no time did they ever enter their appearance, at no time did they ever call and say what's the status of this case, they never did that, correct?A. Not that I know of."
Court Transcript, August 15, 2005, at p. 17,
l. 14 - 25.
The Court also finds it troublesome that Judge Almond allowed the defendant to file, appear, and argue a pro se motion to dismiss the matter on June 8, 2004. If Judge Almond did not believe that the defendant had been granted pro se status by [*10]Judge Brockway, the defendant should not have been allowed to proceed pro se in court on that date. The defendant testified that he argued his motion for close to two hours (see, Court Transcript, August 15, 2004, at p. 99, l. 6).
Given the testimony presented at the three day hearing, this Court is constrained to grant the motion and to dismiss this matter pursuant to Criminal Procedure Law 30.30 (1) (a). The People simply failed to meet their burden of proving that any time from the defendant's arraignment in Fort Covington Town Court on November 6, 2003, through his appearance in that court on June 8, 2004, is excludable pursuant to Criminal Procedure Law 30.30 (4). As a result, the Court finds that the 215 day period from November 6, 2003, through June 8, 2004, counts against the People's speedy trial time. As the People had only 182 days within which to announce their readiness for trial, the matter must be dismissed.
III. Remaining Applications
In view of the foregoing, it is not necessary to further address the remaining issues set forth in the defendant's motion for dismissal pursuant to Criminal Procedure Law § 30.30 (1) (a) and § 210.35 nor in the defendant's motion to dismiss pursuant to Criminal Procedure Law § 210.20 (1) (a), 210.20 (1) (b), and 210.40.
For the reasons set forth herein, it is
ORDERED that the motion to dismiss the indictment pending against defendant, Marc Zaccaria, be, and the same hereby is granted; and it is further
ORDERED that the indictment pending against defendant, Marc Zaccaria, be, and the same hereby is dismissed, with prejudice; and it is further
ORDERED that, pursuant to 22 N.Y.C.R.R. § 200.40, defendant is advised (1) that the People have the right to take an appeal; (2) that the defendant has the right to retain counsel to represent him on the appeal or to respond to the appeal pro se; (3) that, if the defendant can show no financial ability to pay for the cost of counsel on appeal, the defendant may make application to the appellate court for assignment of counsel to respond to the appeal; and (4) that the defendant must provide the court and the defendant's trial counsel with an address where he or she can be contacted should the People appeal the order of [*11]the court; and it is further
ORDERED that the defendant's counsel herein serve a copy of this decision and order upon the defendant and file an affidavit of the service thereof with the court; and it is further
ORDERED that the Chief Clerk of the Court return to the People and to the defendant any exhibits, from the speedy trial hearing and any other pre-trial hearings, currently in the Court's possession to the appropriate party with that party's copy of this decision and order; and it is further
ORDERED that any bail posted in this matter be, and the same hereby is, exonerated and that any surety may submit, in triplicate, a proposed order, together with the original receipt, directing the return of the same to the party posting any bail.
ENTER
______________________________
Acting Supreme Court Justice
Dated at Malone, New York, this 28th day of February, 2006.
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