People v Ndoye

[*1] People v Ndoye 2012 NY Slip Op 51211(U) Decided on June 27, 2012 Criminal Court Of The City Of New York, Kings County Hong, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2012
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Cherif A. Ndoye, Defendant.



2011KN097883



For the Motion:

Daniel Kogan, Attorney for the Defendant

94-09 101st Avenue

Ozone Park, New York 11416

Opposing the Motion:

Hon. Charles J. Hynes, District Attorney, Kings County

Renaissance Plaza at 350 Jay Street Brooklyn

New York 11201-2908

By: Luc R. Pierre, Esq., Of Counsel

Gilbert C. Hong, J.

I.Introduction

The defendant, Cherif A. Ndoye, is charged by information with one count each of Assault in the Third Degree (Penal Law § 120.00[1]), Attempted Assault in the Third Degree (Penal Law §§ 110.00/120.00[1]), Menacing in the Third Degree (Penal Law § 120.15), Harassment in the Second Degree (Penal Law § 240.26[1]), and Endangering the Welfare of a Child (Penal Law § 260.10[1]) (hereinafter collectively "TPO1 charges"); three counts of Tampering with a Witness in the Fourth Degree (Penal Law § 215.10[a]); and ten counts of Criminal Contempt in the Second Degree (Penal Law § 215.50[1] [one count], [3] [nine counts]).

By papers dated May 21, 2012, the defendant moves to dismiss the information on the ground that the People have denied him a speedy trial as required by CPL 30.30. Specifically, the defendant claims that the 105-day delay in prosecutorial readiness exceeds the 90 days permitted, where, as here, the defendant is charged with a class A misdemeanor and no felonies (see CPL 30.30[1][b]).

The People, by papers dated June 7, 2012, claim that no more than 48 days are properly charged to them to date. Additionally, the People seek to be permitted to admit, at the defendant's trial, evidence of certain out-of-court statements made by the complainant, wherein the complainant related the events surrounding the defendant's alleged conduct with respect to the TPO1 charges. The defendant filed reply papers on June 11, 2012 and the People file sur-reply papers on June 18, 2012. [*2]

On June 20, 2012, this Court, upon all of the papers filed, denied the defendant's motion in its entirety and granted the People's application to the extent of ordering that a Sirois hearing be held before commencement of the defendant's trial. This opinion will explain the reasons for the Court's ruling.

II.Procedural History

On December 14, 2011, the defendant was arraigned on a misdemeanor complaint charging one count each of Assault in the Third Degree, Attempted Assault in the Third Degree, Menacing in the Third Degree and Harassment in the Second Degree. The court (Hecht, J.) issued an order of protection — effective through May 7, 2012 — requiring that the defendant stay away from the complainant; that the defendant avoid communicating with the complainant by any means; and that the defendant not commit any new crimes against the complainant. The court committed the defendant to the custody of the New York City Department of Corrections in lieu of an insurance company bond in the amount of one thousand dollars or cash bail in the same amount. The matter was adjourned to December 19, 2011, for conversion.

On December 19, 2011, the People filed with this Court a superseding information alleging an additional count of Endangering the Welfare of a Child, based upon allegations that the complainant's four-year-old son was present at the time of the alleged assault. The new accusatory instrument also charged one Count of Criminal Contempt in the Second Degree, alleging that, while in prison on December 15, 2011, the defendant violated this Court's order of protection by calling the complainant on her cellular phone. The People announced that they were ready for trial. The matter was adjourned to December 27, 2011, for the People to provide discovery and for the Appellate Division to assign new counsel for the defendant.

On December 27, 2011, newly assigned defense counsel appeared on the defendant's behalf. The People did not provide any discovery materials and the matter was adjourned to January 11, 2012, for hearings and trial. The People were directed to serve and file discovery materials off-calendar.

On January 11, 2012, the People were not ready for hearings or trial. The Court adjourned this matter until February 1, 2012, stating that the People would be charged until they served and filed a statement of readiness.

On February 1, 2012, the People were not ready for trial because the complainant was not available. The People requested February 14, 2012, for trial and the Court adjourned this matter to that date.

On February 14, 2012, the People were not ready for trial and requested 3 days. The matter was adjourned to February 22, 2012.

On February 22, 2012, the People were not ready for trial because the assigned Assistant District Attorney was out of the office. The Court, at the People's request, adjourned this matter to February 28, 2012.

On February 28, 2012, the People were not ready for trial because it was the arresting police officer's regular day off. The People requested an adjournment to March 13, 2012 [FN1] and the Court [*3]adjourned the matter to that date.

On March 13, 2012, the People announced that they were ready for trial, but no trial parts were available. The Court adjourned the matter to March 20, 2012.

On March 20, 2012, the People again announced that they were ready for trial, but the matter was adjourned to March 28, 2012.

On March 28, 2012, the People announced that they were ready for trial, but the defendant was medically unable to be produced in Court. The matter was adjourned to April 10, 2012.

On April 10, 2012, the People were not ready because the assigned Assistant District Attorney was engaged in the trial of another matter. The Court granted the People's request for a one-week adjournment to April 17, 2012.

On April 17, 2012, the People were not ready because the assigned prosecutor was again engaged in the trial of another matter. The Court, once more, granted the People's request for a one-week adjournment to April 24, 2012.

On April 24, 2012, the People once again were not ready because the assigned prosecutor was engaged in the trial of another matter. The Court granted the People's request for an adjournment to May 2, 2012.

On May 2, 2012, the People filed a second superseding information, charging nine additional counts of Criminal Contempt in the Second Degree and three counts of Tampering with a Witness in the Third Degree. The information alleged that, between December 17, 2011, and January 28, 2012, the defendant violated this Court's order of protection by repeatedly calling the complainant and that the defendant, on several occasions, sought to dissuade the victim from testifying as to the underlying assault-related charges. The People were not ready for trial and the Court adjourned this matter to May 23, 2012, stating that the People would be charged until they served and filed a statement of readiness.

On May 21, 2012, the defendant filed the instant motion. The balance of the adjournments had in this case to date have been for the purpose of determining this motion.

The defendant has remained incarcerated throughout the pendency of this case.

III.Speedy Trial Claim

Where a defendant is charged with at least one class A misdemeanor and no felonies, the People are required to be ready for trial within ninety days of commencement of the criminal action, not counting any excludable periods. CPL 30.30(1)(b). Where the People have failed to do so, the Court is required to grant a defense motion to dismiss the case on speedy-trial grounds. Id.A criminal action commences with the filing of the first accusatory instrument and includes all accusatory instruments "directly derived" from the initial instrument. See CPL 1.20(16), (17).

Where an accusatory instrument is superseded to add new charges that are "based on the same incident, and many of the same acts," the CPL 30.30 calculation with respect to the added charges relates back to that of the original charges and all chargeable and excludable periods that were had with respect to the original charges are equally applicable to the new, added charges. People v Farkas, 65 AD3d 700, 702 (2d Dept 2009), affd 16 NY3d 190 (2011).

In the instant matter, the People twice superseded the original accusatory instrument. On December 19, 2011, the People added two counts. The first, Endangering the Welfare of a Child, arose from the same incident as did the original charges, adding that the alleged offense had [*4]occurred in the presence of the complainant's young child. This count is, thus, derived from the original complaint and the speedy trial calculation with respect to this count would be identical to that of the original assault, attempted assault, menacing, and harassment counts.

The second, added count of Criminal Contempt in the Second Degree, however, is based upon conduct that is alleged to have occurred well after the conduct alleged in the TPO1 charges, and after the commencement of the action on these charges. Under these circumstances, it cannot be said that this charge is directly derived from the TPO1 charges, as to do so would result in a nonsensical scenario where speedy-trial time would be calculated from before the alleged conduct even occurred. Rather, this count is, for all intents and purposes, a new criminal action that has effectively been joined for trial with the TPO1 charges by its inclusion on the same accusatory instrument.[FN2] As such, the speedy-trial time for this added contempt charge began to run when the superseding information was filed.

Similarly, the second superseding information charged three counts of witness tampering as well as nine additional counts of Criminal Contempt. These alleged acts, too, do not arise from the same incident as either the TPO1 charges or the first added contempt charge, and cannot be said to be directly derived from either of the earlier accusatory instruments. Accordingly, speedy-trial time with respect to these added charges began to run with the filing of the second superseding information.

a. The Parties' Contentions

The People and the defendant agree that from the defendant's arraignment on December 14, 2011 through January 11, 2012, only the five days preceding conversion are charged to the People.[FN3]

With respect to the period between January 11, 2012, and February 22, 2012, the defendant claims that the People should be charged with 37 days (all 34 days of delay between January 11, 2012 and February 14, 2012 plus the three days that they had requested on February 14, 2012). The People contend that this entire period should be excluded from the calculation because it was occasioned by their inability to secure the complainant's cooperation despite their due diligence. The People further state that the complainant's refusal to cooperate was a result of the defendant's repeated telephone conversations — conversations initiated and conducted in violation of this Court's order of protection.

b. The Court's Legal Analysis

The delay resulting from the unavailability of a prosecution witness may constitute an exceptional circumstance and be excluded from speedy trial calculation when the People exercise due diligence in securing the witness's testimony. See CPL 30.30(4)(g); cf. People v Meyers, 114 AD2d 861, 862 (2d Dept 1985). In the case at bar, the People allege that the complainant "shocking[ly]" became uncooperative with the prosecutor after the defendant allegedly made numerous telephone calls to the complainant requesting that she withhold her testimony. Furthermore, this Court is satisfied that the People exercised due diligence in attempting to secure [*5]the complainant's testimony. The People successfully applied for an order of protection in an effort to prevent the defendant from harassing the complainant in an effort to dissuade her cooperation. Nonetheless, after the defendant allegedly violated the order of protection by contacting the complainant, the complainant refused to cooperate with the People despite the prosecutor's attempts to contact her via letters and telephone calls. See People's sur-reply at 3.

Under the circumstances of this case, it is highly unlikely that any additional efforts on the part of the People would have convinced the complainant to cooperate with the prosecution. In this domestic violence, the defendant's alleged efforts to stymie the prosecution are of a unique nature. According to the People's opposition papers, the defendant's alleged contacts with the complainant were not of a threatening character — for which the District Attorney could have offered the complainant protection if she testified. Rather, the communication took the form of impassioned pleas between husband and wife to refrain from testifying against him. This Court cannot conceive of a case where even the most silver-tongued of prosecutors could have persuaded the complainant to cooperate in the face of the onslaught of alleged telephone calls from her husband. Similarly, it is highly unlikely that serving the complainant with a subpoena requiring her testimony would have counteracted the defendant's alleged influence and secured the complainant's appearance, nor is a material witness order available to compel the complainant's testimony in this misdemeanor prosecution. See CPL 620.20(2); cf. People v Khan, 146 AD2d 806, 807 (2d Dept 1989).

The People having identified this period of post-readiness delay as excludable, the defendant must "identify any legal or factual impediments to the use of [this exclusion]." People v Luperon, 85 NY2d 71, 78 (1995). The defendant does not addresses the complainant's unavailability during this time period, but merely notes that "only on February 1, 2012 was the defendant deemed unavailable." Since the defendant has not disputed any of the People's factual allegations or legal arguments regarding this period, this Court finds this entire time period to be excludable.

With respect to the period of delay between February 22, 2012 and March 13, 2012, the defendant claims that this entire period should be charged to the People as it represents two adjournments the District Attorney had specifically requested. The People counter that this time should be excluded because the delay resulted from the complainant's coerced unavailability. However, upon reviewing the record in this case, this Court finds that these two adjournments were requested because first the assigned Assistant District Attorney and then the arresting officer, were not available to begin the trial. Thus, even had the complainant been cooperative, the People would not have been ready on these dates, and the requested delays should properly be charged to the People, as the continuance was not granted "because of the unavailability" of the complainant.

The People and the defendant agree that between March 13, 2012 and May 2, 2012, an additional 22 days are charged, and that an additional 21 days are properly charged between May 2, 2012 and the present.

c. Conclusion

In sum, no more than 68 days are properly charged to date with respect to the TPO1 charges.

Likewise, no more than 63 days are properly charged to date with respect to the Criminal Contempt count that arose from conduct alleged to have occurred on December 15, 2011, and that was charged on the first superseding information.

Finally, only 21 days are charged with respect to the witness tampering and criminal contempt counts that stemmed from the defendant's alleged conduct between December 17, 2011 and January 28, 2012, and that were added in the second superseding information. The defendant's motion to dismiss the information is, therefore, denied in its entirety. [*6]

IV.Sirois Hearing

The People have alleged sufficient facts to demonstrate a distinct possibility that the defendant induced the complainant's uncooperativeness when he allegedly called her in spite of this Court's order of protection. Thus, under the circumstances, the People's motion to permit the introduction at the defendant's trial of the complainant's out-of-Court statements is granted to the extent that a Sirois hearing is order to be held before trial. See Matter of Holtzman v Hellenbrand, 92 AD2d 405, 415 (2d Dept 1983). The People's motion is otherwise held in abeyance pending that hearing and is referred to the hearing Court for determination.

The foregoing opinion constitutes the decision of the Court.

Dated:June 27, 2012

Brooklyn, New York

________________________

Gilbert C. Hong, J.C.C. Footnotes

Footnote 1:The People contend that they had, in fact, requested an adjournment to March 9, 2012 — a contention that is consistent with the notation made by the presiding judge on February 28, 2012 (but see People v Berkowitz, 50 NY2d 333, 349 [1980]). However, in light of this Court's ultimate conclusion on the instant motion, this Court assumes — without deciding — that the People had requested an adjournment to March 13, 2012.

Footnote 2:The issue of whether these counts have been properly joined is not before the Court at this juncture.

Footnote 3:Although the People, at one point in their papers, contend that the last two days of the pre-conversion period should be excluded (see Affidavit in Opposition, number 10, para 1), at another point they include all five days in their calculation (see Affidavit in Opposition, number 10, para 2).