People v Barenzano

[*1] People v Barenzano 2008 NY Slip Op 52412(U) [21 Misc 3d 1137(A)] Decided on November 28, 2008 Criminal Court Of The City Of New York, Kings County Nadelson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 28, 2008
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Anthony Barenzano, Defendant.



2007KN000880



For the People:

Damani Sims, ADA

For the Defendant:

Howard Tanner, Esq.

Eileen Nadelson, J.

Defendant is charged with two counts of Petit Larceny (PL § 155.25), and two counts of

Falsifying Business Records in the Second Degree (PL § 175.05[3]), both class A

misdemeanors.

The complaint alleges that on two separate dates at the same place of occurrence, namely the Norwood Avenue Subway Station, in Kings County, the Defendant did issue a metrocard in return for $2.00 in currency to the informant, who then gained entry into the subway.

The People expound the events leading to the arrest of the Defendant as follows:

First Occurrence

"On December 13, 2006, Detective Richard Huang observed the defendant

selling individuals $2.00 Metrocards which contravenes MTA policy unless

the buyer of said card is a senior citizen or disabled. Police Officer Rachel

Pichardo approached the defendant and asked the defendant to sell Officer

Pichardo a Metrocard in exchange for the aforementioned $2.00. Officer

Pichardo swiped said Metrocard and the defendant buzzed Officer Pichardo

into the subway terminal. Detective Huang retrieved the official records of

the Transit Authority regarding said Metrocard transaction and observed

that the aforementioned Metrocard was last used on December 4, 2006,

at approximately 7:54 am and that no funds had been added."

(People's Affirmation in Response, ¶ 3).

Second Occurrence

"On December 28, 2006, Officer Pichardo approached the defendant and asked

defendant to sell Officer Pichardo a $2.00 Metrocard to which the defendant

agreed. The defendant gave Officer Pichardo a Metrocard in exchange for the

aforementioned $2.00. Officer Pichardo swiped said Metrocard and the [*2]

defendant buzzed Officer Pichardo into the subway terminal. Again,

Detective Huang retrieved the official records of the Transit Authority

regarding said Metrocard transaction and observed that the aforementioned

Metrocard was last used on October 26, 2006, at approximately 2:06 pm

and that no funds had been added. Detective Huang further observed the

official Transit Authority records to indicate that the defendant did not

report that the defendant sold the aforementioned Metrocards to the Transit

Authority. Detective Huang placed the defendant under arrest on

January 4, 2007." (People's Affirmation in Response,¶ 4).

Defendant moves to dismiss the accusatory instrument on the ground that he was denied his right to a speedy trial. For the reasons that follow, the Defendant s motion is denied.

Because this crime is punishable by a sentence of imprisonment of more than three

months, the People were required to announce their readiness for trial within ninety days of commencing this criminal action. CPL §30.30 (1) (b). In order to be successful on the instant motion, the Defendant has the burden of demonstrating the existence of a delay in excess of ninety days. People v Santos, 68 NY2d 859, 861 (1986)[FN1]. Once he has made such a showing, the burden shifts to the People to establish that certain periods within that time should be excluded. People v Santos, Id.

Calculating Includable and Excludable Time

January 5, 2007 - February 1, 200727 days

The Defendant was arraigned on January 5, 2007, and was released in his own

recognizance. The case was adjourned to February 1, 2007 for conversion. The People are charged with this period.

February 1, 2007 - March 7, 200712 days

On February 1, Legal Aid was relieved, and a notice of appearance was filed by Defendant's private counsel. People served and filed a supporting deposition, which partially converted the complaint. The case was adjourned to March 7, 2007.

On February 13, the People served and filed a statement of readiness with additional corroboration, which converted the accusatory instrument to an information. The People are charged from February 1, until February 13, for 12 days of includable time.

March 7, 2007 - April 20, 20070 days

On March 7, the matter was set down for discovery and adjourned to April 20. This period is excluded. CPL § 30.30 (4) (a). People v Caussade, 162 AD2d 4, at 8 (2nd Dept) lv. denied, 76 NY2d 984 (1990).

April 20, 2007 - May 8, 20070 days

On April 20, the People served and filed discovery materials, and the case was adjourned for trial to May 8. The People are entitled to a reasonable period of time to prepare for hearings or trial. CPL § 30.30 (4) (a); People v Lang, 5 Misc 3d 1021(A),***2 (Crim Ct, Kings County 2004) (adjournment for the People to prepare for trial is excludable); People v Reed, 19 AD3d 312 (1st Dept), lv. denied, 5 NY3d 832 (2005).

May 8, 2007 - July 9, 20070 days [*3]

On May 8, the People stated that they were not ready for trial stating that their witness was not available. While the People requested one week, no time is charged as defense counsel was engaged on another matter and could not proceed on this case. (See Defendant's Affirmation ¶ 8, and People's Affirmation in Response ¶ 10). A period during which a defendant is without counsel, through no fault of the court, is excluded. CPL § 30.30 (4) (f).

July 9, 2007 - September 10, 20074 days

On July 9, the People were not ready and requested a four day adjournment. The matter was adjourned to September 10. Where the People have previously announced ready, they are only charged with the time they requested. People v Bruno, 300 AD2d 93, 95 (1st Dept), lv. denied, 100 NY2d 641 (2003).

September 10, 2007 - October 10, 20070 days

On September 10, the People filed additional discovery, and announced ready for trial. This period is excluded.

October 10, 2007 - November 14, 20070 days

On October 10, and again on November 7, the defense counsel was engaged on another trial. This time is excluded.

November 14, 2007 - November 29, 20077 days

On November 14, the People were not ready for trial. In their response to the instant motion, the People assert that they requested seven (7) days, which the court tallies.

November 29, 2007 - December 12, 20074 days

On November 29, the People were not ready for trial. On December 3, they served and filed a statement of readiness. They are charged the four (4) days from November 29 to December 3.

December 12, 2007 - January 7, 20087 days

On December 12, the People were not ready. They requested one week. The matter was

adjourned to January 8. The People are charged with the time they requested.

January 7, 2008 - February 5, 20080 days

On January 7, the People announced ready for trial. Defense counsel was not ready. The

People are not charged any time for this delay.

February 5, 2008 - February 26, 20087 days

On February 5, the People announced that they were not ready for trial, and they requested one week. They are charged with seven (7) days of this delay.

February 26, 2008 - March 24, 20080 days

On February 26, both sides were ready for trial. The court could not accommodate the trial on that date. The matter was adjourned to March 24. This period is excluded.

March 24, 2008 - April 14, 20087 days

On March 24, the People were not ready as their witness was unavailable. They requested one week. They are charged with seven (7) days of this delay.

April 14, 2008 - May 13, 20080 days

On April 14, the People stated that they are ready for trial. Defense counsel was engaged on another matter. The case was adjourned to May 13. This period is excluded.

May 13, 2008 - May 20, 20087 days

On May 13, The People did not have their file, and the matter was adjourned to May 20. [*4]The People are charged with the full period of this delay.

May 20, 2008 - Present0 days

On May 20, the People announced ready for trial. The Defendant filed the instant motion to dismiss pursuant to CPL § 30.30 (1) (b). The court set a motion schedule. The People were to file their response off calendar on June 3. The case was adjourned to June 30 for the court's decision.

On June 30, the People did not have their response to Defendant's motion. They requested additional time to respond to the motion, asserting that the Assistant District Attorney had been reassigned, and was trying to finish the instant matter. The court set down a new date of July 2 for the People's response, with an option for the Defendant to submit a reply by July 9. The case was adjourned for the court's decision to July 30.

The People filed their response to the motion on July 25.

On July 30, the case was adjourned to August 11 for the court's decision.

On August 11, the Defendant requested an adjournment for the purpose of filing a Reply. The matter was adjourned to September 5.

On September 5, the Defendant requested additional time to submit his Reply. The matter was adjourned to October 15. The Defendant filed a Reply on September 22. On October 15, the court reported that it tallied a total of 85 chargeable days. The defense counsel requested a hearing to determine the reasonableness of certain delays, specifically, the People's delays in responding to the Defendant's motion. The hearing was scheduled for October 31.

On October 31, this court conducted a hearing, and decision was reserved to November 7.

On November 7, this court orally ruled, finding that the People's delay in responding to the Defendant's motion was reasonable, and denying the Defendant's motion. This decision is a written account of the court's oral ruling on November 7.

Discussion

The court amends its oral finding to reach a final tally of 82 days.[FN2] The court counted all chargeable time up until May 20, 2008, when the Defendant filed the instant motion. No time thereafter was charged.

The legislative intent underlying the adoption of CPL § 30.30 was to address the issue of prosecutorial readiness and not to create a speedy trial statute in the constitutional sense. People v Anderson,66 NY2d 529 (1985); People v Lucero, 21 Misc 3d 412 (Crim. Ct., New York County 2008).

The Defendant's challenge focuses on the People's delay in responding to the motion. He contends that the People should be charged from July 2 to July 25 for their late response. This additional time would put the People over the 90 days allotted to the People to be ready for trial. The Defendant supports his claim by asserting that the presiding judge on June 30 ruled that the People would be charged for their late response. The record, however, does not bear out this claim. While the court did allude to "the ramifications with respect to any extension of time that's been granted" (Transcript June 30, 2008, pg. 3 lines 19 - 22), the court did not charge the People [*5]for the time. (See discussion in transcript, June 30, 2008, pg. 4).

Notations as to the includability or excludability of a specific adjournment are not binding on the court ruling on a 30.30 motion. Such a determination "may not be made by the court acting sua sponte . . . it is a determination which is to be made when the defendant moves to dismiss on speedy trial grounds, and not at the time the adjournment is granted." People v Berkowitz, 50 NY2d 333, 349 (1980). However, as a courtesy, this court made further inquiry of the presiding judge, who confirmed to this Judge that no final ruling to charge time was made.

When computing the time for the People to be ready for trial, the court must exclude:

"(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: ... pre-trial motions; ... and the period during which such matters are under consideration by the court;" CPL § 30.30 (4) (a) (emphasis supplied).

When the Defendant filed the instant motion to dismiss, the burden shifted to the People to produce a sufficient record of exclusions, which they did. See, People v Berkowitz, supra.The Defendant then submitted a Reply arguing that the additional time for the People's

response be charged. At Defendant's request, the court permitted a hearing on the reasonableness of the delay in People's response, and whether or not it should be charged.

At the hearing, the Defendant raised several arguments, including the lack of complexity of the case and the inordinate amount of time since arraignment.

The People explained that the delay was due to the reassignment of the Assistant District Attorney, who needed more time to complete his pending cases.

It is well-settled that "while a defendant's pretrial motion is sub judice, that period of delay is excludable regardless of the People's readiness or unreadiness at the time." People v Lucero, 21 Misc 3d. at 415.

When the People failed to respond in a timely fashion to the Defendant's motion, the Defendant opted to delay the matter further by requesting time to reply. It is difficult to arrive at any conclusion other than that the motion was "under consideration" the entire time. CPL § 30.30 (4) (a). People v Inswood, 180 AD2d 649 (2nd Dept., 1992), appeal denied 79 NY2d 1002. In fact, in People v. Brown, 99 NY2d 488 (2003), after a motion schedule was set by the court, no time was charged to the People even though the defendant did not even file the motion. The Court held that since the time was set aside for the motion, it was "of no consequence that defendant never actually filed the contemplated motion ..." at 492. See also, People v Terrence, 163 AD2d 437 (2nd Dept, 1990), appeal denied 76 NY2d 1024.

Conclusion

In view of the foregoing, this Court finds that any delay in the People's response to the

motion was reasonable pursuant to CPL 30.30 (4) (a), and that only 82 days of chargeable time have elapsed. The Defendant's motion is therefore denied.

This constitutes the Decision and Order of the court.

Dated:Brooklyn, New York____________________________

November 28, 2008Eileen Nadelson,J.C.C. Footnotes

Footnote 1:While the Court in Santos found for the defendant, it is cited for this proposition.

Footnote 2:On November 29, 2007, the Court originally tallied seven (7) days. Upon careful review, the Court found that the People had filed and served a statement of readiness on December 3. They are therefore charged only with four (4) days.