People v Mahmood
Annotate this CaseDecided on September 8, 2006
Criminal Court of the City of New York, Kings County
The People of the State of New York,
against
Zahid Mahmood, Defendant.
2004KN044625
For the People, Charles J. Hynes, District Attorney, Kings County, by Beth Ann Hurley, Esq., Assistant District Attorney.
For the Defendant, Barry Black, Esq.
John H. Wilson, J.
Defendant is charged with Operating a Motor Vehicle While Impaired (VTL Sec. 1192.1), a traffic infraction.
By motion dated June 29, 2006, Defendant seeks dismissal of the Criminal Court Complaint, asserting that his right to a speedy trial under the Sixth Amendment of the United States Constitution has been denied.
In their Response dated July 18, 2006, the People assert that they should only be charged with 71 days of includable time.
On August 10, 2006, this Court heard Oral arguments on Defendant's current motion to dismiss.
For the reasons that follow, Defendant's June 29, 2006 motion is denied. The Court finds that to date, the People are charged with 85 days in this matter.
PROCEDURAL HISTORY
Defendant was arrested on July 19, 2004, and initially charged with both Operating a [*2]Motor Vehicle While Intoxicated (VTL Sec.1192.3), an unclassified misdemeanor, as well as Operating a Motor Vehicle While Impaired (VTL Sec. 1192.1), a traffic infraction. By motion dated April 6, 2005, Defendant sought dismissal of the Criminal Court Complaint on the ground that the People had failed to comply with the time limitations imposed upon the prosecution of misdemeanors by CPL Sec. 30.30.
In a Response dated April 27, 2005, the People initially asserted that they should only be charged with 56 days of includable time, however, on May 18, 2005, the People agreed to the dismissal of VTL Sec. 1192.3, pursuant to CPL Sec. 30.30, and retained VTL Sec. 1192.1. The Court adopted the People's concession, and ruled from the bench that Defendant's April 6, 2005 motion was denied.
On July 11, 2005, Defendant brought another motion to dismiss, asserting that Defendant had been denied his right to a speedy trial of the VTL Sec. 1192.1 charge, as guaranteed by CPL Sec. 30.20, 30.30, and the Sixth Amendment of the United States Constitution. On August 19, 2005, this Court heard Oral arguments on Defendant's July 11, 2005 motion to dismiss.
By decision dated September 16, 2005, this Court denied Defendant's July 11, 2005 motion, finding that to date, the People were only charged with 63 days in this matter. This Court also found that while the speedy trial guarantee of the United States Constitution applies to traffic infractions, since the People had initially charged the Defendant with VTL Sec. 1192.3, an unclassified misdemeanor, the time period that applies to this matter is 90 days pursuant to CPL Sec. 30.30(1)(b). See, People v. Mahmood, 10 Misc 3d 198 (Crim. Ct., Kings Cty 2005).
Defendant then brought another motion to dismiss dated February 28, 2006, once more asserting that his right to a speedy trial under the Sixth Amendment of the United States Constitution had been denied. Defendant argued that the People's Statement of Readiness dated August 5, 2004 was illusory, and as such, three subsequent adjournments for trial, those being January 13, 2005, February 24, 2005 and March 24, 2005, should be charged in their entirety to the People regardless of the People's time requests.
By their Response dated March 9, 2006, The People disputed that their Statement of Readiness dated August 5, 2004 was illusory, and asserted that they should only be charged with the time they requested subsequent to their statement of readiness.
In a decision dated March 21, 2006, Hon. Alvin Yearwood, JCC, denied Defendant's motion, however, in dicta, the Court stated that Defendant "could have but never moved to reargue" this Court's decision of September 16, 2005. See, decision of Hon. A. Yearwood, JCC, dated March 21, 2006 at p. 8.
Predictably, by motion dated May 9, 2006, Defendant sought to vacate the Court's decision of March 21, 2006, as well as permission to reargue his February 28, 2006 motion to [*3]dismiss before this Court. By Response dated May 23, 2006, the People opposed Defendant's May 9, 2006 motion, however, by decision dated June 15, 2006, Hon. Alvin Yearwood, JCC, granted Defendant's motion, vacated his March 21, 2006 decision, and gave Defendant leave to re-present his arguments to this Court.
The present motion to dismiss dated June 29, 2006 did then follow.
LEGAL ISSUES
Defendant's June 29, 2006 motion addresses the same issue presented in his motion of February 28, 2006; that is, the People's Statement of Readiness dated August 5, 2004 was illusory, and as such, three subsequent adjournments for trial, those being January 13, 2005, February 24, 2005 and March 24, 2005, should be charged in their entirety to the People regardless of the People's time requests.
In their response dated July 18, 2006, the People once more assert that their Statement of Readiness dated August 5, 2004 was illusory, and that they should only be charged with the time they requested subsequent to their statement of readiness.
A) Constitutional Speedy Trial vs. CPL Sec. 30.30.
At the outset, this Court finds no need to decide this matter on Constitutional Speedy Trial grounds. As stated in this Court's decision of September 16, 2005, "where a misdemeanor charge is present on the docket, and is subsequently dismissed, the time for all charges on the docket begins to run from the arraignment of the defendant." 10 Misc 3d at 204 (emphasis in original). Since the defendant herein was initially charged with the unclassified misdemeanor of Driving While Intoxicated pursuant to VTL Sec. 1192.3, the 90 day time limitation of CPL Sec. 30.30(1)(b) applies to this matter. The dismissal of this charge does not change the time limitation imposed on the entire docket. See, People v. Fisher, 167 Misc 2d 850, 856 (Crim. Ct., Richmond Cty 1995); People v. Matute, 141 Misc 2d 988, 990 (Crim. Ct., Bx Cty 1988).
Thus, the strictures of CPL Sec. 30.30 will be applied to this matter, and not Constitutional Speedy Trial.[FN1] [*4]
B) People's August 5, 2004 Statement of Readiness.
Defendant has consistently asserted that the People's Statement of Readiness of August 5, 2004 was illusory. For its part, this Court continues to reject Defendant's assertion in its entirety.
Defendant relies upon the holding in People v. Khachiyan, 94 Misc 2d 161, 164, 752 NYSd 243 (Crim. Ct., Kings Cty 2002), which states that the "calculation of speedy trial time in Brooklyn Criminal Court is complicated by a culture that has permitted the People to use the word ready' in a myraid of situations not contemplated by CPL Sec. 30.30." The Court there goes on to discuss the People's promiscuous use of the word "ready" on the record when they file discovery, or when the docket is converted.
The minutes of the proceedings held in open court in this matter on August 5, 2004 indicate that the People stated in an unequivocal way their readiness for trial. See, Minutes of August 5, 2004, p. 2, attached as Exhibit B to Defendant's motion of June 29, 2006. The People did not state, "ready to convert," or "ready with discovery." They stated, "People are ready for trial." Thus, the issue discussed in Khachiyan is not present in this matter.
Defendant also cites the standards enunciated in People v Kendzia, 64 NY2d 331, 486 NYS2d 888 (1985) in support of his contention that the People's statement of readiness was not accurate. However, nothing in Kendzia would serve to invalidate the People's August 5, 2004 statement of readiness in this matter.
In Kendzia, the Court of Appeals made clear that readiness for trial under CPL Sec. 30.30(1) "encompasses two necessary elements. First, there must be a communication of readiness by the People which appears on the trial court's record." 64 NY2d at 337. There is no dispute that such a record exists in this matter.
Second, "the prosecutor must make his statement of readiness when the People are in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness." 64 NY2d at 337. In People v England, 84 NY2d 1, 5 (1994), this second element of readiness was defined as the People having removed all legal impediments to the commencement of their case.
To date, Defendant has failed to provide this Court with any evidence that there was any "legal impediment" to the commencement of trial in this matter, or that the People's August 5, 2004 statement of readiness was in anything but good faith. [*5]
Defendant does assert that the People could not have been ready for trial on August 5, 2004, since subsequent to their statement of readiness, on September 29, 2004, the People failed to produce discovery which was later determined not to exist. However, as noted during Oral Arguments of August 10, 2006, a District Attorney's failure to comply with the mandates of CPL article 240 relative to discovery is not inconsistent with the prosecution's continued readiness for trial. See, Minutes of August 10, 2006, p. 7-9; People v. Caussade, 162 AD2d 4 (2d Dept., 1990), App. Den., 76 NY2d 984 (1990); People v. Cole, 90 AD2d 589 (3d Dept., 1982).
Thus, in the absence of any evidence of a lack of candor on the part of the People, the statement of readiness made in open court on August 5, 2004 continues to be accepted by this Court.
C) Adjournments of January 13, 2005, February 24, 2005 and March 24, 2005.
It is well established that post readiness, the People are to be charged only with the amount of time they request. See, People ex rel Sykes v. Mitchell, 184 AD2d 466 (1st Dept., 1992); People v. Urraea, 214 AD2d 378 (1st Dept., 1995). A later assertion of "unreadiness" does not, by itself, provide a reason to question the good faith of a prior statement of readiness (See, People v. Camillo, 279 AD2d 326 (1st Dept. 2001)) since there is no requirement for the People to "repeatedly declare their continued readiness for speedy trial purposes." People v. Washington, 238 AD2d 263 (1st Dept., 1997), app. denied, 90 NY2d 944 (1998).
These rules must however be balanced by this Court's "positive obligation" to make "meaningful inquiries" to determine the truthfulness of the People's statement of readiness. See, People v. Jones, 126 Misc 2d 919, 924 (Crim Ct., NY Cty 1984).
Therefore, though this Court has previously accepted the People's time requests subsequent to their August 5, 2004 statement of readiness, this Court will revisit this issue at this time.
In this Court's decision of September 16, 2005, the People were charged with all time between January 13, 2005 and February 24, 2005 since there was no evidence on the record that the People ever made a request for a date certain for trial. See, 10 Misc 2d at 200. Thus, the People were charged 42 days for that adjournment in this Court's decision of September 16, 2005.
A review of the minutes for the hearing of March 24, 2005 indicate that the People asked for "one week," stating the reason for the adjournment on the record: "The assigned ADA is out of the office." See, Minutes of March 24, 2005, p. 2. Therefore, the People were charged one week (7 days) for this adjournment in this Court's decision of September 16, 2005.
On February 24, 2005, the People stated "not ready," and requested "two weeks." When asked by the Court "why are the People not ready?" the assistant in the part stated "Your Honor, [*6]I do not know. I have no notes except that we are not ready." See, minutes of February 24, 2005, p. 2.
At the oral argument of August 10, 2006, the assigned assistant stated "(o)n February 24, 2005, I wasn't the assigned assistant on this case. I can't find any notation as to why they were not ready, but I know the case was transferred for that time." See, Minutes of August 10, 2006, p. 28.
In People v. Liotta, 79 NY2d 841, 843 (1992), the Court of Appeals stated that "the burden rests on the People to clarify, on the record, the basis for the adjournment so that on a subsequent CPL 30.30 motion the court can determine to whom the adjournment should be charged." See, also, People v Salgado, 27 AD3d 71, 75, 808 NYS2d 54 (1st Dept., 2006).
In this Court's decision of September 16, 2005, the People were only charged two weeks (14 days) for this adjournment. Since the People cannot find any explanation for the adjournment of February 24, 2005, this Court hereby modifies its September 16, 2005 decision. The entirety of the time between February 24, 2005 and March 24, 2005 will now be charged to the People, or an additional 14 days, for a total of 28 days charged for that adjournment.
D) Adjournments subsequent to this Court's September 16, 2005 decision.
Though not specifically addressed in Defendant's motion of June 29, 2006, in a chart presented prior to the conclusion of his Affirmation in Support of said motion, counsel alludes to the time which has passed since this Court's September 16, 2005 decision. During oral arguments, it was determined that only two periods of chargeable time exist subsequent to this Court's finding of 63 days charged to the People; February 6, 2006 to February 23, 2006; and March 21, 2006 to May 9, 2006.
By stipulation of the parties, the People are charged one week (7 days) for the time between February 6, 2006 and March 21, 2006. Further, by stipulation of the parties, and based upon the People's filing and service of a written Statement of Readiness on March 22, 2006, the People are only charged one day for the time between March 21, 2006 and May 9, 2006. See, Minutes of August 10, 2006, p. 35-36.
Thus, if we add the additional 14 days charged to the People between February 24, 2005 and March 24, 2005, to the 7 days charged between February 6, 2006 and March 21, 2006, and the one day charged between March 21, 2005 and May 9, 2006, to the 63 days charged to the People by this Court's September 16, 2005 decision, this Court finds the People are charged with 85 days in this matter to date.
Therefore, since the People's 90 period has not yet expired, the Defendant's June 29, 2006 motion to dismiss the remaining count of VTL Sec. 1192.1 is denied. [*7]
All other arguments advanced by Defendant have been reviewed and rejected by this court as being without merit.
Since Defendant is only charged with a traffic infraction, he is not entitled to a jury trial. Therefore, this matter will be adjourned to BTP 1 for September 21, 2006, for trial. No further adjournments should be permitted, and all further motions should be held in abeyance until after the trial of this matter is concluded.
This shall constitute the opinion, decision, and order of the Court.
Dated: Brooklyn, New YorkSeptember 8, 2006
_______________________________Hon. John H. Wilson, JCC
Footnotes
Footnote 1: In his decision dated March 21, 2006, Judge Yearwood noted that "he might have followed a different analytical route and reached a different conclusion," citing People v. Ramsammy, 2006 NY Misc. LEXIS 442 (Crim. Ct., Kings Cty 2006). In that matter, a court of concurrent jurisdiction applied the factors presented in People v. Taranovich, 37 NY2d 442 (1975) in determining whether or not constitutional speedy trial applies to a docket where, as in the instant case, a defendant had been initially charged with misdemeanor charges, but only a traffic infraction remains on the docket.
While this Court agrees that the Taranovich factors should be applied to any analysis of constitutional speedy trial, no such analysis is necessary under the facts presented herein. Where a defendant has been initially charged with a misdemeanor, and that charge is dismissed, the time limitations of CPL 30.30 apply to any traffic infraction left on the docket. See, Fisher, 167 Misc 2d at 856; Matute, 141 Misc 2d at 990. "To hold otherwise would allow the time limitations of the lesser charge to control the entire docket." Mahmood, 10 Misc 3d at 204.
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