People v Robinson

[*1] People v Robinson 2011 NY Slip Op 52485(U) Decided on December 9, 2011 Criminal Court Of The City Of New York, Queens County Lopez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 9, 2011
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Dulsey A. Robinson, Defendant.



2010QN040333



For the Defendant: Leonard Ressler, Esq.

For the People: ADA Karlton Jarrett

Gene R. Lopez, J.

The defendant is charged with one count each of assault in the third degree (Penal Law §120.00[1]), petit larceny (Penal Law §155.25), criminal possession of stolen property in the fifth degree (Penal Law §165.40), criminal possession of a weapon in the fourth degree (Penal Law §265.01[2]) and harassment in the second degree (Penal Law §240.26[1]).

In the accusatory instrument, Kevin Squires, the security officer for Conway Department Store, stated that on July 5, 2010, he observed the defendant remove a toy and three pieces of chocolate from the store shelves, place the items into a black plastic bag and leave the store without paying for the merchandise. Mr. Squires also stated that he apprehended the defendant outside the store and recovered the merchandise from defendant's black plastic bag. Mr. Squires also stated that the defendant did not have permission or authority to take, remove, use, possess, or otherwise exercise control over said merchandise without paying for it. Mr. Squires also stated that as he stopped the defendant, she became upset and grabbed a metal rod striking him on the head causing a cut to his head, bleeding and substantial pain. Mr. Squires also stated that he sought medical treatment at a local hospital and received stitches to his head. Police Officer Jacobs recovered the metal rod from inside the store.

At the time of the incident, an eye witness telephoned 911. According to the defendant, the caller stated that a young man was beating up an elderly woman. The defendant maintains this witness' account of the incident is exculpatory and has requested that the People turn over the caller's name, address and telephone number.

On February 18, 2011, the People gave a copy of the 911 call to the defendant without the identifying information of the caller. At that time, the Honorable Ira Margulis directed the People to provide the defendant access to the Brady material, meaning the caller's contact information. On April 18, 2011, this court directed the People to provide the defendant with the contact information of the witness/telephone caller. At the time of the filing of defendant's motion, August 17, 2011, the People had not turned over such information to the defendant. [*2]

The defendant contends that her statutory and constitutional rights to a speedy trial have been violated based upon the People's failure to turn over the Brady material. The defendant claims that since more than 90 days has elapsed from February 18, 2011 when the court directed the People to turn over the Brady material, the accusatory instrument should be dismissed on speedy trial grounds. In the alternative, the defendant requests that this court impose a sanction against the People for their failure to turn over this Brady material. The defendant argues that the appropriate sanction is an adverse inference or that the 911 call be admitted.

The People oppose the defendant's motion and state unequivocally there was no Brady violation. In the prosecutor's response, he concedes that a court on February 18, 2011, "after hearing the [P]eople's description of the 911 call ... thought the material was Brady and directed the [P]eople to turn over the 911 caller's information to the defendant...". (p. 2) The prosecutor as of the date on which he filed his response, October 3, 2011, asserts that he recently provided to the defendant the contact information of the 911 caller.[FN1] The prosecutor explained further, that while the People are "ever cognizant of their obligation within the meaning of Brady v Maryland" (citations omitted), they did not turn over this information earlier because this case was at the suppression hearing stage so this information was not necessary to the defendant. The prosecutor also explains that he had not received a specific time frame from any court as to when this information was to be turned over to the defendant.

One cannot but be troubled by several assertions made by the prosecutor with regard to his Brady obligations and the general sentiment present throughout the prosecutor's response that he has determined unilaterally that the substance of the call from the 911 caller is not exculpatory. As the Second Department stated in People v Robinson, 133 AD2d 859, 860 (1987) "[e]ven if the prosecution had valid reasons to consider [the] witness to be unreliable, it should nonetheless have provided the defense with this important exculpatory information which was clearly Brady material (citations omitted)." Further, "[i]t is for the trier of fact, and not the prosecutor to decide the credibility of witnesses (citations omitted)." (People v Jackson, 168 Misc 2d 182 [Sup Ct, Bronx County 1995].)

The prosecutor asserts in the first instance that the failure of two separate courts to give him a specific time period on which to turn over the information excuses or mitigates his failure to do so in a timely manner. This position is, of course, flatly inconsistent with the rule 3.8(b) of the Rules of Professional Conduct (22 NYCRR 1200.0)[FN2] , and standard 3-3.11 of the American [*3]Bar Association Standards for Criminal Justice[FN3], both of which require a prosecutor to make timely disclosure at the earliest feasible opportunity. If the prosecutor felt the court erred in its determination that the substance of the 911 call made by the unidentified caller constituted Brady information, his remedy was to ask for re-argument and not act in a dilatory manner that may yet jeopardize defense counsel's own independent investigation of the Brady witness.

The second assertion made by the prosecutor was the notion that the posture of the case is somehow related to when a prosecutor should discharge his or her Brady obligations. Here, the prosecutor, in his response opposing an alleged speedy trial violation and a request that a sanction be imposed on the prosecution for failure to disclose the contact information of the Brady witness, maintains that "[e]ven if the 911 caller did possess knowledge of how the outbreak of violence began, which she does not, it would have no bearing on a Mapp/Wade/Dunaway hearing as she was never interviewed by the arresting officer because she did not wish to be involved.". (p. 2) In a subsequent passage of the response also opposing the same alleged speedy trial violation and request for a sanction, the prosecutor again asserts that "[g]iven the sensitive nature of the information requested, the lack of a specific deadline by the court and that this matter is not at a trial phase, it is obvious that the court would not have held the case stagnant for this information." (p. 2)

Both of these arguments by the prosecutor miss by a wide margin any rational explanation for delaying by nearly seven months the disclosure to the defense attorney of the contact information for the Brady witness. While the prosecutor states the sensitive nature of the information requested as a concern that somehow contributed to the delay in disclosing contact information of the Brady witness to the defense attorney, the record is absolutely silent as to whether the prosecution ever sought a protective order "given the sensitive nature of the information requested". Nor does the posture of the case have any bearing on the timely disclosure of Brady information at the earliest feasible opportunity. The timeliness of a Brady disclosure should not depend on the eccentric, arbitrary, or capricious legal arguments offered by the prosecutor that essentially disclaims an "ever cognizant" understanding of his obligations to disclose Brady information. In effect, the prosecutor gave short shrift to Brady's requirements of prompt disclosure and to the orders of two separate courts to disclose the contact information of the Brady witness to the defense attorney.

In this case it is worth considering the comments of Justice Thomas who wrote the majority opinion for the Supreme Court in Connick v Thompson, ____ US ____, 131 S Ct 1350 (2011). In that case the Court reversed the Court of Appeal's affirmation of the District Court's [*4]finding that the respondent was liable for Brady violations committed by subordinate prosecutors. Justice Thomas made clear that prosecutors are ethically bound to know what Brady entails and have a "unique...duty to produce Brady evidence to the defense." Justice Thomas also observed that "[a]n attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment." (Id. at 1362 - 1363.)[FN4] Thus, this court finds the delay of nearly seven months in disclosing the contact information of the Brady witness to the defense attorney inconsistent with the prosecutor's overriding and fundamental duty to promptly disclose such information and constitutes a clear and unequivocal breach of his responsibility to do so.

Twice in the People's response, the prosecutor states his intention to make the Brady witness available to the defense but only when the case has reached the trial stage. (p. 2) The stated intention of the prosecutor to delay disclosing the contact information of the Brady witness despite a judicial ruling that the information sought by the defense is Brady material and two directives by two separate courts to release the information to the defense attorney raises a reasonable inference that the prosecutor's delay was wilful and motivated by a desire to gain a tactical advantage notwithstanding that he subsequently disclosed the contact information of the Brady witness to the defense attorney. As such, this court orders that a hearing be held to determine whether the prosecutor's actions in belatedly turning over the information to defense counsel were "willful and motivated by a desire to obtain a tactical advantage" and whether a sanction is warranted.[FN5] (Taylor v Illinois, 484 US 400, 415 [1988].)

Turning to the defendant's motion to dismiss on the ground that her statutory right to a speedy trial has been violated, it is well settled, however, that while Brady material is discoverable pursuant to CPL 240.20(1)(h), time is not chargeable to the People merely on account of their failure to comply with their discovery obligations. (see People v McKenna, 76 NY2d 59 [1990]; People v Anderson, 66 NY2d 529 [1985]; People v Cassaude, 162 AD2d 4 [2d Dept], lv denied 76 NY2d 984 [1990].) The People's failure to comply with their discovery obligations does not implicate their ability to proceed to trial, although it may affect the defendant's ability to do so. For this reason, the defendant's argument that the time period from February 18, 2011 to the present should be charged to the People because they did not respond to her discovery demands is rejected. (see People v Marshall, 167 AD2d 427 [2d Dept 1990], lv denied 78 NY2d 956 [1991].)

The People, however, are charged with some delay from this time period. On February 18, 2011, the People were not ready to proceed and requested an adjournment to February 25, [*5]2011. The court adjourned the case to March 2, 2011. Since this is a post-readiness adjournment (the People announced their readiness for trial on October 4, 2010), the People are charged with only the actual period of the adjournment requested. (People v Williams, 229 AD2d 603 [2d Dept], lv denied 89 NY2d 931 [1996].) Thus, the People are charged the 7 days they requested; the balance of the adjournment is excluded.

On March 2, 2011, defense counsel was actually engaged on another matter. The court adjourned the case to April 13, 2011. This period is excluded. (CPL 30.30[4][b], [f])

On April 13, 2011, the People were ready to proceed. The court adjourned the case to June 27, 2011. This period is excluded.

On June 27, 2011, the People were not ready to proceed and requested an adjournment to July 5, 2011. The court adjourned the case to July 15, 2011. Since this is a post-readiness adjournment, the People are charged with only the actual period of the adjournment requested. (Id.) Thus, the People are charged the 8 days they requested; the balance of the adjournment is excluded.

On July 15, 2011, the People were not ready to proceed. The court adjourned the case to September 9, 2011. On August 31, 2011, the defendant filed with the court and served upon the People this instant motion. The court file does not reflect that the People requested a particular date. Since the record is silent as to the length of this post-readiness adjournment sought by the People, the People are charged with the 47 day period from July 15, 2011 to August 31, 2011. (People v Reid, 214 AD2d 396 [1st Dept 1995].) The balance of the adjournment is excluded. (CPL 30.30[4][a].)

On September 9, 2011, the court adjourned the case to October 20, 2011 for decision. This period is excluded. (CPL 30.30[4][a].)

For the time period of February 18, 2011 to the present, the total amount chargeable to the People is 62 days, an amount that does not exceed the ninety day speedy time limitation. Therefore, the defendant's motion to dismiss, pursuant to CPL 30.30, is denied.

The defendant seeks dismissal of the information on the ground that she has been denied her constitutional right to a speedy trial. The defendant fails to set forth any arguments to show how her constitutional right to a speedy trial has been violated. (See People v Taranovich, 37 NY2d 442, 445 [1975]). For this reason, defendant's motion to dismiss pursuant to CPL 30.20 is denied.

The defendant also moves to dismiss the charges in the interest of justice pursuant to CPL 170.40; People v Clayton, 41 AD2d 204 (2d Dept 1973). The People oppose the motion. CPL 170.40 permits the dismissal of an information in the interest of justice provided there is "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant ... would constitute or result in injustice." "Although the decision to dismiss an information lies within the discretion of the trial judge (CPL 170.40, subd. 1), it is clear that that discretion is neither absolute nor uncontrolled." (People v Wingard, 33 NY2d 192, 196 [1973]). It should only be exercised in that "unusual case that cries out for fundamental justice beyond the confines of conventional considerations." (People v Belge, 41 NY2d 60, 62-63[Fuchsberg J., concurring 1976]). After consideration of defendant's arguments and evaluating them against the criteria set forth in CPL 170.40, this court concludes that the defendant has not on this record demonstrated that dismissal is warranted. [*6]

In support of her motion, the defendant claims that there has been conflicting accounts as to the whether the department store's security cameras inside the store were operable at the time of the incident. The defendant maintains that this circumstance coupled with the 911 caller's description of the incident as a young man beating up an elderly woman warrants dismissal in the interest of justice.[FN6] Defendant's claim fails to justify dismissal. (see People v Khan, 15 Misc 3d 1131[A][Crim Ct, New York County 2007].) "Where a bona fide defense or other evidence to weaken the People's case exists, this is a matter that requires resolution at a trial rather than by way of a pre-trial motion to dismiss." (People v Prunty, 101 Misc 2d 163, 168 [Crim Ct, Queens County 1979].) The court in Prunty also stated that "[a] motion to dismiss in the interests of justice is not intended to be a substitute for a trial." (Id.)

According to the defendant, she is 53 years old, married and has children. At the time of the incident, the defendant had two jobs in the nursing field. As a result of this arrest, the defendant claims that she was terminated from one of these two positions. This case represents her first arrest. The fact that the defendant has no prior criminal record or an exemplary background is also insufficient to justify a dismissal in the interests of justice. (People v Kelley, 141 AD2d 764 [2d Dept 1988]; People v Varela, 106 AD2d 339 [2d Dept 1984]; People v Andrew, 78 AD2d 683 [2d Dept 1980]).

Thus, this court is not convinced that dismissal is required due to any compelling factor, consideration or circumstance that clearly demonstrates that the conviction or prosecution of this defendant would constitute or result in injustice. (CPL 170.40[1]). Accordingly, the defendant's motion to dismiss the information in the interest of justice is denied.

This opinion constitutes the decision and order of this Court.

Dated:December 9, 2011

Queens, New York

_______________________________

GENE R. LOPEZ, J.C.C. Footnotes

Footnote 1:In his response, the prosecutor failed to state when the Brady information was released to the defense attorney. However, it seems clear that the prosecutor released this information sometime between August 17, 2011, the date the defendant's motion was dated and September 28, 2011, the date the prosecutor's response was dated.

Footnote 2:Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.8(b) reads as follows:

A prosecutor or other government lawyer in criminal litigation shall make timely disclosure (emphasis added) to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.

Footnote 3:ABA Standards for Criminal Justice, Prosecution Function, Standard 3-3.11(a) (3d ed. 1993) reads as follows:

A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.

Footnote 4: See generally Rules of App Div, 2d Dept (22 NYCRR) § 691; Judiciary Law § 90(2).

Footnote 5:As noted, after the defendant filed this motion, the People supplied the defendant with the contact information of the 911 caller. At this juncture, it is unknown to this court whether the prosecution's delay in disclosing the contact information of the Brady witness has rendered that witness unavailable to the defense. Thus, this court can only speculate as to the prejudice allegedly suffered by the defendant. At the hearing, the defendant may argue the prejudice causedby the People's late disclosure of the information.

Footnote 6: The defendant has submitted documents from Queens Long Island Medical Group, P.C. dated July 7, 2010. These documents indicate that the defendant complained to the medical personnel that on July 5, 2010, she had been beaten about the body by security staff of the Conway Department Store and causing her pain.