People v Ortiz-Hernandez

[*1] People v Ortiz-Hernandez 2009 NY Slip Op 50065(U) [22 Misc 3d 1107(A)] Decided on January 13, 2009 Criminal Court Of The City Of New York, New York County Weinberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 13, 2009
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Manuel Ortiz-Hernandez, Defendant.



2008CN004100



For D: Linda Poust Lopez, Esq., The Legal Aid Society, 49 Thomas St., NY, NY 10013. (212) 298-5000. For the People: NY County District Attorney's Office by ADA Toni Mardirossian, One Hogan Place, NY, NY 10013. (212) 335-4367.

Richard M. Weinberg, J.

Defendant was tried by this Court and found guilty of Prostitution (Penal Law §230.00). He moves to set aside that verdict pursuant to Criminal Procedure Law §330.30 (1). This statutory provision permits the Court to set aside or modify a verdict when there appears in the record any ground which, if raised upon appeal, would require a reversal or modification as a matter of law. Defendant essentially argues that the Court committed reversible procedural and substantive errors in deciding defendant's CPL §30.30 motion. Although this motion may not technically fall under the CPL §330.30 rubric, the Court will nevertheless reconsider the issues raised by defendant.

The procedural history of this case is relatively simple and involves only four adjournments, all of which occurred in Part AR6. This Court presided over each of the calendar calls. Defendant was arraigned on June 18, 2008 and the case was adjourned for motion practice. On the next Court date, August 12, 2008, defendant waived motions. The case was adjourned to September 23, 2008 for trial. On that date, the People were not ready and the case was adjourned to November 18, 2008 for trial. On November 18, 2008, the People had their witnesses an undercover Police Officer and a Detective in the Courthouse and they announced that they were ready for trial. The Court was also available to begin the trial that day.

Upon the People's announcement of readiness, defense counsel informed the Court that she would be making a CPL §30.30 motion. Shortly thereafter, she filed a written CPL §30.30 motion. There was extensive colloquy, both on and off the record, between the Court, the People and Defense Counsel as to the merits of the motion. The Court's action sheet contained a clear [*2]history of the case and there were no factual disputes. The defendant's motion was based on a legal argument concerning the excludability of a portion of the adjournment following the defendant's waiver of motions a topic which the Court had previously researched and upon which it had issued a written decision in another case. Following a recess, the Court handed down a detailed written decision denying the motion. The case then proceeded to trial.

Defendant argues that the Court committed procedural error by deciding the motion in the absence of a written response from the People. Such argument is without merit. To require that the People respond in writing to a CPL §30.30 motion filed moments before the commencement of trial is not practical nor is it legally required.

The People were ready, their witnesses were in the Courthouse and the Court was available to start the trial. To require a written response would have entailed a further, needless adjournment for that response and the Court's decision. In the event that the motion was then denied, the case would have to again be adjourned for trial and the People would again have to bring their witnesses to Court. If the People were not ready on that subsequent trial date, the speedy trial clock would again run in defendant's favor, despite the fact that the People had been ready on the day the motion had been made. This Court will not facilitate such gamesmanship.

Furthermore, in this context, there is no legal requirement that the Court adjourn the case for the People file a written response before the Court may render a decision. As the Appellate Division, First Department has noted, where defendant makes a CPL §30.30 motion shortly before a trial is to commence and there is insufficient time for the People to respond in writing, such lack of a written response does not constitute a failure to raise the relevant issues. People v Chang, 160 AD2d 469. As noted above, this case had a relatively simple procedural history, the Court's own records were quite clear, there was no factual dispute as to what occurred on each adjourned date and both parties had ample opportunity to argue an uncomplicated motion.

In addition to defendant's procedural error argument, he also re-argues the substantive correctness of the Court's written CPL §30.30 decision. The Court, after carefully re-considering defendant's arguments, adheres to its decision. That decision charged the People with the 56 day adjournment from September 23, 2008 to November 18, 2008 and excluded all other adjournments.

Defendant's substantive argument concerns the exclusion of the entire adjournment following the waiver of motions. While acknowledging that the People were entitled to a reasonable adjournment following the waiver of motions, defendant argues that, at some point, the adjournment became unreasonable and the CPL §30.30 clock began to run against the People. Defendant suggests that the adjournment became unreasonable after fourteen days or, at the very least, after thirty eight days. Either suggestion is completely arbitrary and without any factual basis. If reasonableness ends at fourteen days, then fifteen days must necessarily be unreasonable. And why fourteen instead of thirteen? [*3]

Defendant, on this motion, essentially argues that the People have the burden of establishing what portion of an otherwise excludable adjournment is excludable. Neither statutory nor case law imposes this double burden on the People.

Defendant specifically argues that it is unreasonable to give the People a 42 day adjournment to prepare for a two witness Prostitution trial. In People v Garrett (182 AD2d 496 [1st Dept]), cited by both the People and defendant, the case had been adjourned for defense motions. On the adjourned date, defendant announced that he was waiving motions. The Court then adjourned the case from September 30th to November 9th for trial. The Appellate Division held that the motion Court had properly excluded the entire forty day adjournment for trial following the waiver of motions. Garrett involved a charge of Criminal Possession of a Weapon in the Third Degree, arguably a factually simpler charge to prove at trial than Prostitution. If forty days was a reasonable excludable adjournment, on what basis would this Court conclude that forty two days is unreasonable?

Defendant would have this Court arbitrarily set a two week period as the outer bounds of reasonableness for excludability purposes in a Prostitution case. He cites People v Green (90 AD2d 705 [1st Dept]). However, as noted by the Court in People v Taylor (16 Misc 3d 339), "Even when a so-called Green adjournment does properly apply, the First Department has never held that only 14 days may be excluded. Rather, that Court has repeatedly excluded adjournments of much greater length." The Taylor Court then lists ten illustrative examples. See also People v Jones (19 Misc 3d 1126), wherein the Court found that a sixty-five day adjournment from November 26th to January 30 following defendant's failure to file motions as scheduled was "entirely excludable as a reasonable period of delay under CPL 30.30(4)(a)." Moreover, the Jones Court, citing Taylor, observed that the adjournment "was of standard length, as measured by the calendar and caseload of the court".

The adjournment at issue in this case was a period of delay resulting from defendant's waiver of motions and is excludable under CPL § 30.30 (4)(a). The adjournment was of standard length, was consistent with the Court's normal calendar practices and was consistent with applicable appellate guidelines.

Defendant's motion is denied in all respects. This constitutes the decision and order of the Court.

Dated:___________________________

New York, New YorkRichard M. Weinberg

Judge of the Criminal Court