People v Nino

[*1] People v Nino 2009 NY Slip Op 50152(U) [22 Misc 3d 1116(A)] Decided on February 2, 2009 Criminal Court Of City Of New York, New York County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2009
Criminal Court of City of New York, New York County

The People of the State of New York

against

Michael Nino, Defendant.



2007NY044256



For the People:

ADA Shawn McMahon

New York County District Attorney's Office

One Hogan Place

Trial Bureau 50, Room 608A

New York, NY 10013

For the Defense:

Eric Bernstein

260 Madison Avenue, 18th Floor

New York, NY 10016

Elisa S. Koenderman, J.

The defendant, Michael Nino, moves to dismiss the complaint against him on the ground that he has been denied his right to a speedy trial pursuant to CPL 30.30. He is charged with disorderly conduct (PL 240.20[1]) and unlawful assembly (PL 240.10) together with two co-defendants, Brian Heduab and Jonathan Vargas. The complaint alleges that the three defendants, acting in concert with approximately ten other individuals, yelled, screamed, pushed, shoved, and displayed gang signs, thereby causing a public disturbance, disruption and alarm. Defendant argues that more than 60 days have elapsed since his arraignment on a complaint charging him with two violations and a B misdemeanor. The People counter that 13 days are chargeable to them. Pursuant to the following analysis, this court holds that only nine days are chargeable to the prosecution; accordingly, the defendant's motion to dismiss is denied.

PROCEDURAL HISTORY[*2]

On June 11, 2007, the defendant appeared in New York County Criminal Court and was arraigned along with two co-defendants, Brian Heduab and Jonathan Vargas, on a complaint charging them with unlawful assembly (PL 240.10) and disorderly conduct (PL 240.20[1]). A motion schedule was set for defendant Nino, with defense motions due off-calendar on July 30, 2007, and his case was adjourned to August 13, 2007 for the People's response. Defendant Heduab's case was adjourned to the same date for new 18B counsel to be assigned. Defendant Vargas' case was also adjourned to August 13, 2007; however, he did not appear on August 13, 2007, and a bench warrant was issued for his arrest. He returned to court on August 20, 2007, when a motion schedule was set and his case was adjourned to November 5, 2007. On that date he pleaded guilty to disorderly conduct and received a sentence of time served.

On August 13, 2007, counsel was assigned to defendant Heduab, and both defendant Nino and Heduab's cases were adjourned to October 22, 2007, for the court's decision on defendant Nino's motions, and for the People's response and court's decision on defendant Heduab's motions, which were due off-calendar on September 24, 2007. On August 13, 2007, the court also granted the People's motion to amend the complaint by adding an additional charge of disorderly conduct under PL 240.20(5).

On October 22, 2007, defendant Heduab's counsel failed to appear, and did not file any motions. The court denied defendant Nino's motions and adjourned both defendants' cases to December 10, 2007, for trial and for defendant Heduab's counsel to appear. On December 10, 2007, the People answered not ready, and both defendants' cases were adjourned for trial on March 17, 2008.

Off-calendar, on December 19, 2007, the People properly filed and served certificates of readiness for both defendants Heduab and Nino. On March 17, 2008, the People again answered not ready, and requested the date of March 21, 2008 for trial. Additionally, in court on March 17, 2008, defendant Heduab filed and served a motion to dismiss for facial insufficiency. Both defendants' cases were adjourned to May 29, 2008, for response and decision on defendant Heduab's motion, and for trial on defendant Nino.

On May 29, 2008, the court had not yet decided defendant Heduab's facial insufficiency motion, and his case was adjourned for the court's decision to August 18, 2008. Despite the fact that defendant Nino's case had not been severed from defendant Heduab's case, the court adjourned defendant Nino's case to August 25, 2008 for trial.

On August 18, 2008, the court denied defendant Heduab's motion to dismiss for facial insufficiency and his case was adjourned to September 29, 2008, for trial. On August 25, 2008, defendant Nino indicated that on the next court date, he intended to file a motion to dismiss based upon an alleged violation of his right to a speedy trial under CPL 30.30. Hence, the court adjourned defendant Nino's case to September 29, 2008 to join defendant Heduab's case and for defendant Nino to file his speedy trial motion.

On September 29, 2008, defendant Nino failed to file his speedy trial motion. The People, having expected the motion to be filed in court that day, answered not ready. The court set a schedule for the speedy trial motion and adjourned the case to December 1, 2008 for response and decision, with defendant's motion due off-calendar on October 20, 2008. Defendant Heduab's case, however, was adjourned to October [*3]24, 2008, to join a new, second case against him in a different court part. On October 24, 2008, the People asked that defendant Heduab's case be adjourned to December 1, 2008, to join defendant Nino's case, as the People intended to try both defendants together.

On December 1, 2008, the People filed and served a response to defendant Nino's speedy trial motion, and his case was adjourned to February 2, 2009, for the court's decision. Defendant Heduab's case was adjourned to the same date for trial.

Defendant advances his speedy trial argument in a general way, without specifically addressing each adjournment period. The People maintain that of all of the adjournment periods, only four days between March 17 and May 29, 2008, and nine days between December 10, 2007 and March 17, 2008, are chargeable to them.

STATUTORY SPEEDY TRIAL

CPL 30.30 is not a speedy trial statute in the constitutional sense. Rather, it was enacted to enforce prosecutorial readiness and is intended only to address delays occasioned by prosecutorial inaction (see People v McKenna, 76 NY2d 59, 63 [1990]; People v Sinistaj, 67 NY2d 236, 239 [1986]; People v Anderson, 66 NY2d 529, 535 [1985]). As such, a defendant's right to a speedy trial under the statute is separate and distinct from his right to a dismissal on the ground that he has been denied his constitutional right to a speedy trial (see Sinistaj, 67 NY2d at 239; People v Brothers, 50 NY2d 413, 416 [1980]; People ex rel Franklin v Warden, 31 NY2d 498 [1973]).

Pursuant to CPL 30.30 (1) (c) the People must be ready for trial within sixty (60) days of commencement of a criminal action charging a defendant with a class B misdemeanor. To be "ready for trial" under CPL 30.30, the People must in fact be ready to proceed and must communicate their readiness on the record (People v Kendzia, 64 NY2d 331, 337 [1985]). Once the People have announced their readiness to proceed to trial they have satisfied their obligation under the statute (see People v Giordano, 56 NY2d 524 [1982]) and are chargeable only with delay they have caused which "directly implicates their ability to proceed to trial" (see People v Cortes, 80 NY2d 201, 210 [1992]). Accordingly, once the People have declared their readiness for trial, they are not chargeable with any delay in proceeding due to court congestion (see People v Chavis, 91 NY2d 500 [1998]).

Whether the People have satisfied their obligation to be ready under CPL 30.30 is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional delays that transpire after readiness has been declared, when such delays are attributable to the People and are ineligible for any exclusions under the statute (see Cortes, 80 NY2d at 208).

Under CPL 30.30 (4) (a), "a reasonable period of delay resulting from other proceedings, including but not limited to . . . pretrial motions . . .and the period under which such matters are under consideration by the court" is specifically excluded from "the time in which the People must be ready for trial." Indeed, 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 (see People v Douglas, 209 AD2d 161, 162 [1st Dept 1994]. Inasmuch as the legislature intended CPL 30.30 to address delays [*4]caused by the People, the time required for defendant's pretrial motions is rightfully excluded as a delay which has been "caused by the defendant for his own benefit" (see People v Worley, 66 NY2d 523, 527 [1985]).

Additionally, under CPL 30.30 (4) (d), when the defendant is joined for trial with a co-defendant as to whom speedy trial has not run, and good cause was not shown for granting severance, reasonable periods of delay attributable to the co-defendant are excluded from the time in which the People must be ready for trial (see People v Bravman, 89 Misc 2d 596 [Sup Ct, Crim Term, Suffolk County 1977]; see also People v Diaz, 275 AD2d 652 [1st Dept 2000]). Simply put, "for one set of criminal charges, there is but one criminal action" (People v Barnett, 135 Misc 2d 1127, 1129 [Crim Ct, Kings County1987]), and "a case generally has only one beginning and one end" (id.), regardless of the number of defendants.

Here neither the People nor counsel for either defendant Nino or Heduab requested to sever the defendants' cases from one another pursuant to CPL 100.45 (1). To the contrary, on October 24, 2008, the People explicitly stated their intention to try both defendants together. Furthermore, given the nature of the charges and underlying factual allegations, it is clear that both defendants' cases are properly joined pursuant to CPL 200.20(2)(a) and CPL 100.45 (1) and that no good cause for severance exists (see People v Forest, 50 AD2d 260 [1st Dept 1975]).

The initial adjournment from arraignment on June 11, 2008 to August 13, 2007 is excludable pursuant to CPL 30.30(4)(a) as a period of delay resulting from the defendant Nino's pre-trial motions. The subsequent adjournment from August 13, 2007, to October 22, 2007 is similarly excludable as a period of delay resulting from the defendant Heduab's pre-trial motions (CPL 30.30 [4][a], [d]).

The following adjournment from October 22, 2007 to December 10, 2007 is also excludable as a reasonable period of delay during which a defendant Heduab was without counsel through no fault of the court or the People (CPL 30.30[4][d],[f]; see People v Corporan, 221 AD2d 168 [1st Dept 1995]).

On December 10, 2007, the People answered not ready and the matter was adjourned to March 17, 2008 for trial. Off-calendar on December 19, 2008, the People filed and served a certificate of readiness. This certificate of readiness satisfied the People's obligation to declare their readiness under the statute and tolled the speedy trial clock (see People v Kendzia, 64 NY2d 331 [1985]). Once the People have answered ready, they are chargeable only with delay which they have caused and are not chargeable with delay due to court congestion (see Cortes, 80 NY2d; see also Chavis, 91 NY2d). Accordingly, only nine days of this adjournment period, from December 10, 2008 to December 19, 2008, are chargeable to the People.

The period from March 17, 2008,[FN1] when defendant Heduab filed and served his [*5]motion to dismiss for facial insufficiency in court, to September 29, 2008, the initial adjourn date for trial for both defendants Heduab and Nino after the court denied defendant Heduab's motion, is excludable as a reasonable period of delay resulting from pre-trial motions made by a co-defendant to be tried jointly (CPL 30.30 [4][a], [d]). After the court denied defendant Heduab's facial insufficiency motion on August 18, 2008, the People were entitled to an adjournment to prepare for trial (see People v Heine, 238 AD2d 212 [1st Dept 1997] [thirty-two (32) day period properly excluded as a reasonable amount of time to prepare the case following motion practice]; People v Park, NYLJ, July 7, 1997, at 25, col 6 [App Term, 1st Dept] [thirty-six (36) day adjournment excludable as a reasonable amount of time to prepare the case following motion practice]). Because under the circumstances the People can in no way be said to have acted unreasonably in requiring time to prepare for trial, they are not responsible for the delay in proceeding (see People v Taylor,16 Misc 3d 339 [Crim Ct, NY County 2007]; see also People v Jones, 2008 NY Slip Op 50884U, 19 Misc 3d 1126 [A] [Crim Ct, NY County 2008]; People v Asmal-Aucapina, 2008 NY Slip Op 28283 [Crim Ct, NY County 2008]). Indeed, the length of the adjournment from August 18, 2008 to September 29, 2008 was controlled by considerations of the court's calendar and caseload (see Taylor, 16 Misc 3d at 343; Jones, 19 Misc 3d at 6). Accordingly the People are not chargeable with this period of delay.

Additionally, the period between August 25, 2008, when defendant Nino's case was first adjourned for him to make the instant speedy trial motion (which was not filed and served until October 14, 2008), and December 1, 2008, when the People filed their response, is excludable as period of delay resulting from defendant's pretrial motions (CPL 30.30 [4][a]). The subsequent adjournment from December 1, 2008 until February 2, 2008, for the court's decision is similarly excludable.

Accordingly, a total of nine days from arraignment is chargeable to the People. Defendant's motion to dismiss therefore is denied.

This constitutes the decision and order of the court.

Dated:February 2, 2009

New York, New York

_________________________

Elisa S. Koenderman, JCC Footnotes

Footnote 1:On March 17, 2008, the People answered not ready on defendant Nino's case and requested an adjournment to March 21, 2008 for trial. Had defendant Heduab not filed his facial insufficiency motion on March 17, 2008, thereby rendering the ensuing adjournment to May 29, 2008 excludable as a period of delay resulting from pretrial motions made by a co-defendant to be tried jointly, the People would have been chargeable with the four days they requested to be ready for hearings and trial (see Cortes, 80 NY2d; Chavis, 91 NY2d).