People v Smith

[*1] People v Smith 2009 NY Slip Op 51906(U) [24 Misc 3d 1247(A)] Decided on August 24, 2009 Criminal Court Of The City Of New York, Richmond County Sciarrino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2009
Criminal Court of the City of New York, Richmond County

The People of the State of New York,

against

Lateefah Smith, Defendant.



2009RI003405



The People were represented by Assistant District Attorney Kristin L. Mitchell, for District Attorney Daniel M. Donovan, 130 Stuyvesant Place, Staten Island NY 10301.

The defendant was represented by Carol Siegel, Esq., for Battiste, Aronowsky & Suchow, Esqs, 60 Bay Street, Staten Island NY 10301.

Matthew A. Sciarrino, Jr., J.

In a motion filed on August 3, 2009, the defendant moves to dismiss the accusatory instrument on the ground that she has been denied her statutory right to a speedy trial (CPL § 30.30 [1] [b]). The People oppose the motion in a response filed on August 6, 2009. This court makes the following finds of fact and conclusions of law:

Facts

The defendant was arraigned on a misdemeanor complaint April 2, 2009. The People concede that the 67-day period up to June 8, 2009, is chargeable to them, when they began to exercise due diligence to convert the misdemeanor complaint into an information. The People's efforts were hampered by the fact that the complainant is 10 years old (as alleged in the misdemeanor complaint) and has been placed in the care of the Administration for Children's Services (as alleged in the People's response to the defendant's motion).

The People allege that the complainant signed a supporting deposition on July 29, 2009, although it is not in the court file.

On July 16, 2009, the court set a motion schedule directing the defendant to file no later than July 24th, and the People to file their response no later than August 6, 2009. On August 3, 2009, the instant motion was filed; and the People filed their opposition on August 6th.

[*2]Discussion

In a motion pursuant to the CPL § 30.30 speedy-trial statute, the defendant bears the burden of going forward with sworn allegations of fact to show that there has been an inexcusable delay beyond the time allowed by the statute, and then the People have the burden of justifying that delay (People v Santos, 68 NY2d 859 [1986]).

In computing time chargeable to the People, the day the accusatory instrument is filed is not chargeable (People v Stiles, 70 NY2d 765 [1987]). The People answer ready by announcing ready on the record, or by filing a statement of readiness and serving a copy on defense counsel within a reasonable time thereafter (see People v Anderson, 252 AD2d 399 [1998], lv denied 92 NY2d 1027; see also People v Kendzia, 64 NY2d 331 [1985]). CPL § 30.30 [4][g] excludes from speedy trial consideration delays occasioned by exceptional circumstances.

Assistant District Attorney Mitchell's affirmation establishes that the People took reasonable steps to meet the exceptional circumstances of communicating with a 10-year old who is in the custody of the Administration for Children's Services (see People v Belgrave, 226 AD2d 550 [2nd Dept 1996]; People v Spector, 189 Misc 2d 224 [App Term, 1st Dept 2001]). Since a motion schedule was set on July 16, 2009, time since then is attributable to the motion and not chargeable to the People (CPL § 30.30[4] [a]; People v Brown, 99 NY2d 488 [2003]; People v Worley, 66 NY2d 523 [1985]).

Accordingly, since only 67 days are chargeable to the People, it is hereby:

ORDERED, that the defendant's motion is denied.

This opinion shall constitute the Decision and Order of the court.

Dated: August 24, 2009_________________________

Hon. Matthew A. Sciarrino, Jr.

Judge of the Criminal Court