People v Matin

[*1] People v Matin 2006 NY Slip Op 51213(U) [12 Misc 3d 1174(A)] Decided on May 9, 2006 Criminal Court, Kings County Sciarrino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 9, 2006
Criminal Court, Kings County

The People of the State of New York, Plaintiff,

against

Shahawar Matin, Defendant.



2004KN053940

Matthew A. Sciarrino, J.

In an apparent case of first impression, this court holds that a defendant's presence on the return date of a Desk Appearance Ticket (DAT) will start the clock for "speedy trial" purposes, even when the instrument is not yet "filed" and there is no official record of the defendant's appearance.

The defendant moves to dismiss the accusatory instrument on the ground that he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law § 30.30(1)(b) and in violation of the due process clauses of the United States and New York State Constitutions. He also moves for an order compelling discovery and inspection of items, suppression of identification evidence, compelling access to all exculpatory and impeachment and evidence, and dissolving the temporary order of protection previously issued in this case. The People oppose the motions for dismissal. This court makes the following findings of fact and conclusions of law:

Facts

On June 9, 2004, the defendant was arrested and charged with Assault in the Third Degree (PL § 120.00[1]) and was issued a DAT returnable on July 15, 2004 at the Kings County Criminal Court.[FN1] Court records fail to corroborate the defendant's assertion that he appeared, as directed, on July 15, 2004. However, the court records also do not support the People's assertion that he failed to appear and that a bench warrant was issued for his arrest. The court records show that on that date there was no pending accusatory instrument against this defendant on file with the court and that no bench warrant was issued for his arrest.

The defendant asserts that when he appeared on July 15, 2004, he was told that the case was not ready to be heard by the court on that date and that he would be notified by mail of the date when the case would be calendared. He has not submitted any documentation supporting his contention. However, this court will take notice of the countless defendants who voluntarily return on DAT [*2]warrants and who give the exact same explanation.

On August 27, 2004, Det. Turano signed a misdemeanor complaint charging the defendant with Assault in the Third Degree as well as Attempted Assault in the Third Degree (PL § 110/120.00[1]), Menacing in the Third Degree (PL § 120.15) and Harassment in the Second Degree (PL § 240.26[1]) for his alleged actions on July 7, 2004. The People acknowledge that the misdemeanor complaint and the afore-mentioned DAT speak to the same alleged criminal transaction.

The defendant asserts that also on August 27, 2004, Det. Turano requested that he appear at the 68th Precinct police station. The defendant states that the detective told him that he would receive police paperwork in connection with the DAT and that the case was being dismissed. When the defendant arrived, he was arrested by Federal agents, taken to the United States District Court, Eastern District, and incarcerated at the Federal Metropolitan Detention Center in Brooklyn. The People's response to the instant motion is silent as to the factual accuracy of the defendant's allegations regarding the events of August 27, 2004 and when he was taken into federal custody. The People do acknowledge that the defendant was in Federal custody on or before January 6, 2006, the date on which, they assert, he was produced by them for arraignment on the accusatory instrument.

On September 8, 2004, the people filed the misdemeanor complaint in this action. They did not answer "Ready for Trial." The defendant did not appear, and the court issued a bench warrant for his arrest. The file does not indicate when, if ever, the People or the Police Department sent notice to the defendant of this appearance date. The People do not assert that the defendant was sent any such notice nor have they submitted proof of such.

On February 6, 2006, the defendant was produced in court and the bench warrant was vacated. The People served and filed a supporting deposition and answered "Ready for Trial." The defendant was arraigned on the accusatory instrument. The case was adjourned until March 20, 2006 for open file discovery.

On March 20, 2006, the court was informed that the defendant had been in federal custody. At the defendant's request, the court set a schedule for the instant omnibus motion and adjourned the case until April 11, 2006 for decision.

On April 11, 2006, the People had not served and filed a response to the defendant's omnibus motion. The court adjourned the case until May 9, 2006, for response and decision. The People served and filed their response on April 28, 2006.

Discussion

Under New York's readiness rule, when a defendant is charged with at least one non-felony [*3]offense punishable by up to one year of incarceration, the case must be dismissed when the People have not answered ready for trial within 90 days of the commencement of the action (CPL § 30.30). Assault in the Third Degree is a Class A misdemeanor punishable by up to one-year imprisonment (see PL § 120.00[1]).

The defendant bears the burden of going forward, by sworn allegations of fact, to show that there has been an inexcusable delay beyond the time allowed by the statute. Once the defendant meets his burden, the People have the ultimate burden of justifying that delay (People v. Santos, 68 NY2d 859 [1986]).

A review of the defense motion papers, the People's Affirmation, and the court file discloses that the periods of delay are attributable as follows:

July 15, 2004 September 8, 2004 ( 55 Days Chargeable)

Ordinarily, a criminal case commences for speedy trial purposes when the People serve and file the first accusatory instrument in court (see CPL 1.20[16]); People v. Stirrup, 91 NY2d 434 [1998]). There is an exception to that rule when the defendant has been issued a desk appearance ticket (DAT) (Id). The speedy-trial clock begins to run in that situation when the defendant "first appears in a local criminal court in response to the ticket" (see CPL 30.30[5][b]). This is the case "even if the People do not file an accusatory instrument" (People v. Lewin, 8 Misc 3d 99 [App Term 9th and 10th Judicial Districts 2005] citing People v. Stirrup, 91 NY2d at 438-439, supra). Under the circumstances asserted by the defendant to have occurred here, where the People have not filed an accusatory instrument, a court has no personal jurisdiction over the defendant (see People v. Durao, 3 Misc 3d 134[A][App Term 9th and 10th Jud Dists 2004][Unpublished]) and cannot issue an arrest warrant to secure his presence in court (see People v Stirrup, 91 NY2d at 439, supra).

This court has found no decision construing the meaning of the phrase in CPL 30.30(5)(b) "appears in local criminal court." People v. Parris (79 NY2d 69 [1992]) held that the clock does not begin to run until the defendant "actually appears"(Id). Defendant Matin asserts that he actually appeared in court on July 15, 2004 and was told to await notice of a new date for his arraignment. The People say that he did not appear. The People have the burden of proof in a CPL 30.30 motion; they have failed to present any proof to substantiate their assertion and thereby rebut the defendant's assertion that he was present.

The court's review of its own record-keeping procedures reveals that the court does not keep records of the appearance or non-appearance of defendants to whom DATs have been issued until the People have filed an accusatory instrument and that accusatory instrument is added to the court calendar for that day. No bench warrant was issued against the defendant on July 15, 2004 and the misdemeanor complaint was not signed by Det. Turano until nearly two months later. It stands to reason then that the accusatory instrument was not on file on July 15, 2004.

Accordingly, the court holds that the instant matter commenced on July 15, 2004. [*4]

Because the People could not and did not answer "Ready for Trial from July 15, 2004 through the calendaring of the accusatory instrument on September 8, 2004, this period, 55 days is chargeable to them.

September 8, 2004 - March 20, 2006 ( 516 Days Chargeable)

On September 8, 2004, an accusatory instrument, a misdemeanor complaint, was filed with the court. The defendant was not present, and the court issued a bench warrant for his arrest. On February 6, 2006, the People produced the defendant in court. The bench warrant was vacated. The People served and filed a supporting deposition and answered "Ready for Trial." The case was adjourned until March 20, 2006, for open-file discovery.

CPL 30.30(4)(c)(i) requires that when a delay in the proceedings is caused by a defendant's failure to appear in court the People are excused from their obligation to be ready for trial if (1) the defendant's whereabouts are not known and he is attempting to avoid prosecution, (2) his whereabouts are not known and his location cannot be determined by due diligence or (3) his whereabouts are known and his present in court cannot be obtained by due diligence.

There is nothing in the record or the People's response to the instant motion to show that the defendant's failure to return to court in February 8, 2004 or thereafter resulted from his willful actions (compare, People v. Sigismundi, 89 NY2d 587 [1997]; People v. Delacruz, 271 AD2d 452 [2d Dept 2000]). There is also nothing in the record to indicate that the defendant's whereabouts on February 8, 2004 through February 6, 2006 were not known to the People. Indeed the People have not responded to the specific contention of the defendant that the arresting officer in this matter, Det. Turano, assisted Federal agents in arresting him on August 27, 2004 and taking him to the United States District Court for the Eastern District in Brooklyn to face conspiracy charges. This was the same date on which the detective signed the misdemeanor complaint that became the initial accusatory instrument in the instant matter. The People acknowledged to the court on March 20, 2006, that the defendant had been in Federal custody before he was produced on February 6, 2006. They have not said when they became aware of his Federal incarceration.

It is not inconceivable that the defendant had had his liberty restored to him for some of the period from August 27, 2004 until February 6, 2006. But the burden of proof that he was not still in custody through February 6, 2006 in this CPL 30.30 application shifted to the People after the defendant filed his motion. The People have not met that burden. Because the police knew the defendant was in Federal custody as of August 27, 2006, that knowledge must be imputed to the District Attorney's Office (People v. Mapp, 308 AD2d 463 [2d Dept 2003]). When just 11 days later the defendant did not appear in court on the instant matter, the People should have informed the court of the defendant's recent arrest and attempted to secure his presence in a reasonable amount of time (see People v. Luperon, 85 NY2d 71[1995]). A delay of nearly two years was not a reasonable amount of time.

Accordingly, the period from September 8, 2004, through February 6, 2006, 516 days, is [*5]chargeable to the People. Because the People converted the accusatory instrument into an information and answered "Ready for Trial" on February 6, 2006 the subsequent adjournment

until March 20, 2006 is not chargeable to them (see People v. Kendzia, 64 NY2d 331 [1985]). Moreover, the adjournment for open file discovery was ordered with the defendant's consent (see CPL 30.30[4][b]; People v. Worley, 66 NY2d 523 [1985]).

March 20, 2006 April 11, 2006 (0 Days Chargeable)

On March 20, 2006, the defense served and filed in the instant motions, and the case was adjourned for response and decision until April 11, 2006. The was an adjournment for resolution of the defendant's pre-trial motions and is not chargeable to the People (see CPL 30.30[4][a]; People v. Worley, 66 NY2d 523, supra).

April 11, 2006 May 9, 2006 (17 Days Chargeable)

On April 11, 2006, the People asked for additional time to respond to the instant motion. The court adjourned the case for decision until May 9, 2006 and put the People on notice that they would be charged until they served and filed their response. The People filed their response on April 28, 2006. The People's additional delay of 17 days will be charged to them as it delayed this court's ability to make its decision.

Conclusion

The People are chargeable for a total of 588 days of "speedy trial" time. The defendant's motion is granted, as the chargeable speedy trial time has exceeded 90 days.

Time Periods

ChargeableTime

July 15, 2004 - September 8, 200455 Days

September 8, 2004 - March 20, 2006516 Days

March 20, 2006 - April 11, 2005 0 Days

April 11, 2006 - May 9, 200617 Days

TOTAL CHARGEABLE TIME =588 Days

Accordingly, the case is dismissed and this court does not need to address the other requested reliefs of the defendant's motion.

Additionally, this court suggests the necessity of a system where the clerks of the Criminal Court do not just tell defendants who return on a DAT that has not yet been filed by the People, that they will be notified when to come back. Numerous defendants do not ever receive this notice and warrants are then issued. At a minimum, the defendant's appearance should be recorded somewhere and the address for where notice should be sent should be verified by the clerk.

This opinion shall constitute the Decision and Order of the court.

Dated:May 9, 2006_________________________

Hon. Matthew A. Sciarrino, Jr.

Judge of the Criminal Court Footnotes

Footnote 1: The original DAT is not on file with the court. A partially completed form DAT, marked "duplicate" is attached to the file. The spaces for the offense(s) charged, the name, rank and signature of the arresting officer and the date the ticket was issued are blank. The defendant asserts that New York City Police Det. Patrick A. Turano issued him the DAT.