People v Conley

[*1] People v Conley 2009 NY Slip Op 51238(U) [24 Misc 3d 1203(A)] Decided on June 17, 2009 Supreme Court, Bronx County Torres, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2009
Supreme Court, Bronx County

The People of the State of New York

against

Jamal Conley, Defendant.



2110-2007



Erika McDaniel Edwards, Esq. for the defendant

Assistant District Attorney Debra Ann Guarnieri. Esq. for the people

Robert E. Torres, J.

Defendant is charged by indictment, inter alia,with Attempted Murder in the Second Degree, several assault counts and other charges. Defendant has filed and served a motion dated January 6, 2009, for an order dismissing the instant indictment pursuant to CPL §§30.30(1)(a) and an order directing his release from custody pursuant to CPL § 30.30 (2)(a). Defendant asserts that the People were not ready to proceed to trial within the statutory period. He does not address specific periods of delay. Rather, he states that six (6) months have elapsed since the commencement of the action and ninety (90) days have elapsed since his arrest. The People, by Affirmation in Opposition dated January 23, 2009, oppose the motion.

CPL §30.30 [1][a] provides that the People are required to be ready for trial within six (6) months of the commencement of a criminal action in which the defendant has been charged with a felony. Further,CPL § 30.30 [2][a] provides that where a defendant is charged with a felony and has been committed to custody, he must be released on bail or on his own recognizance if the People are not ready to proceed within ninety (90) days of his commitment.

For purposes of CPL § 30.30 [1][a], the applicable period commenced with defendant's arraignment on the felony complaint on April 25, 2007. People v. Carter, 91 NY2d 795, 798 (1998). For purposes of CPL §30.30 [2][a], the applicable period commenced on April 25, 2007, at the time of defendant's arrest.

Based upon the motions papers submitted and the Court file, this Court makes the following findings:

Defendant James Conley was arrested on April 25, 2007. Defendant was arraigned on the felony complaint on the same day and bail was set, and the case was adjourned to Part A, for April 30, 2007 for grand jury action. Both parties agree that the period from April 25, 2007 to April 30, 2007 is charged to the People. (5 days charged). [*2]

On April 30, 2007, a true bill had been voted by the Grand Jury and the case was adjourned to July 11, 2007. The People contend this period is excludable.The People have ordered the minutes for this date and ask for an opportunity to submit a supplemental reply addressing this period. However, as of the date of this decision, said minutes have not been secured by the Court. Thus, the People have failed to sustain that this time period or any portion thereof was consented to making it excludable. Therefore, all time prior to the arraignment or indictment is charged. (72 days charged).

On July 11, 2007, the defendant was arraigned on an Indictment charging his with Attempted Murder in the Second Degree, Assault in the First Degree, Attempted Assault in the First Degree, three counts of Assault in the Second Degree, two counts of Assault in the Third Degree and two counts of Criminal Possession of a Weapon in the Fourth Degree. Motion scheduled was set and the case was adjourned to September 20, 2007. Both parties agree that this time is excludable.

On September 20, 2007, the People failed to file a response to defense motions and the court papers indicated that defendant wished to make a bail application. The case was adjourned until October 1, 2007, for People's response. The defendant maintains that 11 days are charged to the People. The Prosecution argues that this time is excludable because motion practice is not chargeable to the People. The Court agrees with the prosecution. See, C.P.L.§30.30(4); People v. Scott, 172 Misc 2d 594, 659 N.Y.S.2d 697(1997); People v. Sivano, 174 Misc 2d 427, 666 N.Y.S.2d 875, appeal denied 91 NY2d 880, 668 N.Y.S.2d 579, 691 N.E.2d 651(1997).

On October 1, 2007, the People again failed to response to defense motions. The case was adjourned to October 25, 2007 for the People's response. The defendant maintains that the People are charged with the time. The People state that this time is excludable for motion practice. The Court agrees with the Prosecution. See, C.P.L.§30.30(4); People v. Scott, 172 Misc 2d 594, 659 N.Y.S.2d 697(1997); People v. Sivano, 174 Misc 2d 427, 666 N.Y.S.2d 875, appeal denied 91 NY2d 880, 668 N.Y.S.2d 579, 691 N.E.2d 651(1997).

On October 25, 2007, the People failed to file a response again and the matter was adjourned until October 30, 2007. The defendant maintains that 5days are charged to the People. The People state that this time is excludable for motion practice. The Court agrees with the Prosecution. See, C.P.L.§30.30(4); People v. Scott, 172 Misc 2d 594, 659 N.Y.S.2d 697(1997); People v. Sivano, 174 Misc 2d 427, 666 N.Y.S.2d 875, appeal denied 91 NY2d 880, 668 N.Y.S.2d 579, 691 N.E.2d 651(1997).

On October 30, 2007, the People filed their response, a decision was rendered ordering pre-trial hearings. The case was adjourned to January 17, 2008. Both parties agree that this time is excludable.

On January 17, 2008, the case was adjourned to February 25, 2008. The defendant maintains that the People should be charged with 39 days because the People were not ready. The People maintain that they stated ready and attached the minutes of said date, which supports the People's contentions. ( 0 days are charged).

On February 25, 2008, defendant consented to an adjournment and the case was adjourned to April 8, 2008 for hearing and trial. (0 days charged).

On April 8, 2008, defendant consented to an adjournment and the case was adjourned to May 28, 2008. (0 days charged).

On May 28, 2008, defendant consented to an adjournment and the case was adjourned to July 14, 2008. (0 days charged). [*3]

On July 14, 2008, the defendant consented to an adjournment until September 15, 2008. (0 days charged).

On September 9, 2009, the defendant filed a Demand to Produce Discovery.

On September 15, 2008, the People were not ready for trial. The case was adjourned for People to respond to defendant's Demand to Produce. The case was adjourned to October 20, 2008. Both parties agree that this time is excluable. (0 days are charged).

On October 20, 2008, the People had not responded to defendant's Demand to Produce. The case was adjourned to November 6, 2008. The defendant contends that 17 days are chargeable.(17 days charged).

On November 6, 2008, the People were not ready for trial and failed to respond to defendant's Demand to Produce. The case was adjourned until December 3, 2008 for hearings and trials. (26 days charged).

On December 3, 2008, the People were not ready for trial and did not respond to defendant's Demand to Produce. The case was adjourned to January 6, 2009. (34 days charged).

On January 6, 2009, the People were not ready for trial and requested two weeks. The case was adjourned to January 26, 2009. (14 days charged). Additionally on this date the defendant filed the instant motion moving for dismissal pursuant to CPL §§30.30(1)(a) and an order directing his release from custody pursuant to CPL § 30.30 (2)(a).

On January 26, 2009, the People filed their response to the instant motion.

CPL § 30.30 [4][a] in pertinent part:

In computing the time within which the people must be ready for trial pursuant to subdivisions one and two, the following periods must be excluded: (a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court; or . . .

Thus under the statute, time periods under which motions are "under consideration by the Court" are normally excludable in that these periods directly result from action taken by the defendant. See, People v. Reid, 245 AD2d 44, appeal denied, 91 NY2d 1012 (1998);

People v. Inswood, 180 AD2d 649 (2d Dept 1992); People v Toro, 151 AD2d 142 (1st Dept 1989); People v Pani, 138 AD2d 532 (2d Dept 1988). While the statute is silent as to exactly how much time the People should be afforded to respond to a defendant's motion, it suggests a "reasonable" time within which to respond. The issue before the Court is whether the People's ninety-one (91)[FN1] day delay, from October 20, 2008 until January 6, 2009, in filing the response to defendant's motion for a Demand To Produce Discovery was unreasonable, unduly delayed the proceedings and thus should be charged to the People. See, People v. England, 84 NY2d 1 (1994); People v. McKenna, 76 NY2d 59 (1990); People v. Commack, 194 [*4]AD2d 619 (2d Dept 1993); People v. Reid, 245 AD2d at 44.

In their response, the People claim that the motion demanding production of discovery was complex and involved Brady issues. Moreover, the People allege that defendant's request involved investigation and related to intricate and grey areas of the law. Additionally, the People requested an opportunity to obtain minutes and submit a supplemental reply after reviewing the minutes. As of the date of this decision, the Court has not received the additional transcripts nor a supplemental reply. More importantly, a review of the Court file reveals that the People never requested more time to respond or apprised the Court of the complicated issues presented by said motion. In fact, the Court's notations for the appearance of December 3, 2008, show that on that date there was no response from the People, no information as to the case, and the Assistant District Attorney was not present. This Court finds that under the circumstances, the delay 91 days referenced above, for the People to respond to the motion was unreasonable.[FN2]

CONCLUSION

Based upon the aforesaid, defendant's motion to dismiss the indictment pursuant to CPL §30.30[1][a] is denied. The Court finds that the People are charged one hundred and sixty-eight days (168 days), less than the six months allowable under CPL §30.30[1][a].

Defendant's motion pursuant to CPL §30.30[2] for release from custody, is denied. Based on the forgoing, the defendant is not entitled to release from custody unless the prosecution was not ready for trial within the 90 days after commencement of commitment. Although there were 77 days charged to the People from the date of the arrest until the date of arraignment, April 25, 2007 through July 11, 2007, said matter was involved in motion practice from July 11, 2009 until September 20, 2007. See, C.P.L.§ 30.30[2].

The aforesaid constitutes the opinion, decision and order of the Court.

Dated:June 17, 2009 Footnotes

Footnote 1:The defendant filed their motion on September 9, 2009. On September 15, 2009, the Court gave the People until October 20, 2009 to respond. On that date the People did not have a response. The Court is not charging the People with this time.

Footnote 2:Notably, the People response to defendant's Motion Demanding Discovery was filed on April 29, 2009, more than six months after said motion was filed.