People v Infante

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[*1] People v Infante 2016 NY Slip Op 50951(U) Decided on June 20, 2016 Criminal Court Of The City Of New York, New York County Statsinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2016
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Wagneric Infante, Defendant.

2014NY080006

Appearances of Counsel:

For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Ashley Foote.For the Defendant: The Legal Aid Society by Ying-Ying Ma, Esq.
Steven M. Statsinger, J.

Defendant, charged with Driving While Ability Impaired by Drugs, in violation of Vehicle and Traffic Law § 1192(4), and Unlawful Possession of Marijuana, in violation of Penal Law §221.05, moves for an order dismissing the Information pursuant to CPL §§ 30.30 and 30.20. In this case, the parties jointly agreed to a long adjournment in exchange for a firm trial date. When that date arrived, however, the People answered "not ready" because two necessary witnesses were on vacation out of the country. Nevertheless, on the particular facts of this case, the Court concludes that the relevant period, which spanned more than four months, is not chargeable to the People.

Accordingly, the Court finds, having considered the entries and documents in the court file, the parties' motion papers, the oral argument and the relevant statutes and case law, that only 4 days are chargeable to the People. Defendant's motion to dismiss is accordingly DENIED.

I. FACTUAL BACKGROUND

A. The Allegations

According to the accusatory instrument, the defendant operated a motor vehicle while impaired by the consumption of marijuana, in that he had bloodshot, glassy eyes, and the smell of marijuana emanated from the inside of his car and his clothes. Additionally, loose marijuana was recovered from the floor of the driver's side of the vehicle. The defendant admitted that he had smoked marijuana an hour earlier.

B. Legal Proceedings

Defendant was arraigned on October 20, 2014, on an Information charging him with Driving While Ability Impaired by Drugs, in violation of Vehicle and Traffic Law § 1192(4), and Unlawful Possession of Marijuana, in violation of Penal Law §221.05. The Court released him [*2]on his own recognizance, and adjourned the case to January 13, 2015, for motion practice. Subsequent calendar appearances took place on February 4, 2015, March 2, 2015, April 9, 2015, May 14, 2015, June 25, 2015, August 5, 2015, September 16, 2015, October 26, 2015, January 8, 2016, and May 9, 2016, on which date the defense filed the instant motion. The People responded to the motion on May 12, and the Court heard oral argument on May 13. The matter has been sub judice since then.

II. DISCUSSION

Defendant is charged with "at least one ... misdemeanor punishable by a sentence of imprisonment of more than three months." CPL § 30.30(1)(b). Thus, his motion to dismiss must be granted if the People were not ready for trial within 90 chargeable days of the commencement of the action. Id. Here, there were 12 court dates from the commencement of the action through the filing of the motion to dismiss. Those events spanned 567 calendar days, and 4 of those days are chargeable to the People. The motion to dismiss is accordingly denied.

A. The Speedy Trial Calculations

1. October 20, 2014, to January 13, 2015: 0 Days Chargeable

Criminal Procedure Law § 1.20(17) provides that "a criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court." In this case, that event occurred at defendant's arraignment on October 20, 2014. The speedy trial clock started on the next day. People v. Stiles, 70 NY2d 765, 767 (1987). At arraignment, the Court adjourned the case to January 13, 2015, for motion practice.

2. January 13, 2015, to February 4, 2015: 0 Days Chargeable

On January 13, 2015, the Court ordered a Johnson/Huntley/Dunaway/Mapp/Refusal hearing. The case was adjourned to February 4 for hearing and trial. This entire period is excludable under People v. Green, 90 AD2d 705, 706 (1st Dept 1982), under which a "reasonable period" after the decision on pretrial motions is excludable, to give the People time to prepare. See also People v. Forbes, 7 AD3d 473, 474 (1st Dept 2004); People v. Dean, 45 NY2d 651, 657 (1978). Accordingly, 0 days are chargeable for this period.

3. February 4, 2015, to March 2, 2015: 0 Days Chargeable

On February 4, 2015, the People answered "ready" for trial, but the defense was not ready. The case was adjourned to March 2.

For this period, 0 days are chargeable to the People. CPL §30.30(4)(b) ("period of delay resulting from a continuance granted by the court at the request of . . . the defendant or his counsel" is excludable). The period is also excludable because the People answered ready, on the record, in the presence of defense counsel. See People v. Cajigas, 224 AD2d 370, 372 (1st Dept. 1996); People v. Armstrong, 163 Misc 2d 588, 590 (App. Term 1st Dept. 1994).

4. March 2, 2015, to April 9, 2015: 0 Days Chargeable

On March 2, 2015, the People answered "ready" for trial, as did the defense, but no trial parts were available. The Court adjourned the case to April 9 for trial.

For this period, 0 days are chargeable to the People. People v. Barnes, 28 Misc 3d 1235(A) at *2 (Crim Ct NY County 2010); People v. Grainger, 164 Misc 2d 294, 295 (Crim Ct [*3]NY County 1995) (adjournment occasioned by "no parts" is excludable). The period is also excludable because the People answered ready, on the record, in the presence of defense counsel. Cajigas, 224 AD2d at 372; Armstrong, 163 Misc 2d at 590.

5. April 9, 2015, to May 14, 2015: 0 Days Chargeable

On April 9, 2015, the People answered "ready" for trial, as did the defense, but no trial parts were available. The Court adjourned the case to May 14 for trial.

For this period, 0 days are chargeable to the People. Barnes, 28 Misc 3d 1235(A) at *2; Grainger, 164 Misc 2d at 295 (adjournment occasioned by "no parts" is excludable). The period is also excludable because the People answered ready, on the record, in the presence of defense counsel. Cajigas, 224 AD2d at 372; Armstrong, 163 Misc 2d at 590.

6. May 14, 2015, to June 25, 2015: 0 Days Chargeable

On May 14, 2015, the People answered "ready" for trial, as did the defense, but no trial parts were available. The Court adjourned the case to June 25 for trial.

7. June 25, 2015, to August 5, 2015: 4 Days Chargeable

On June 25, 2015, the People answered "not ready" for trial because the assigned assistant district attorney was on trial with another matter. The People requested an adjournment to June 29. The Court adjourned the case to August 5. Accordingly, 4 days - the adjournment the People requested - are chargeable for this period.

8. August 5, 2015, to September 16, 2015: 0 Days Chargeable

On August 5, 2015, the People answered "ready" for trial, as did the defense, but no trial parts were available. The Court adjourned the case to September 16 for trial.

9. September 16, 2015, to October 26, 2015: 0 Days Chargeable

On September 16, 2015, the People answered "ready" for trial, as did the defense, but no trial parts were available. The Court adjourned the case to October 26 for trial.

10. October 26, 2015, to January 13, 2016: 0 Days Chargeable

January 13, 2016, to May 9, 2016: 0 Days Chargeable

On October 26, 2015, both sides answered "ready" for trial, however, there were no trial parts available. The Court referred the case to the Trial Part Reservation System, and adjourned the case to January 13, 2016, for hearing and trial.

On January 5, 2016, the trial expediter contacted both parties, by email, with a list of available trial dates. The defense attorney replied, "I'd prefer Monday, May 9th, but could also do Monday May 2nd." The People responded by stating "Monday May 9th will work for me." On January 8, as a result of this email exchange, the trial expediter had the case administratively adjourned to May 9. The People, however, ultimately answered "not ready" on May 9.

Nevertheless, despite this, the Court concludes that the periods from October 26, 2015, to January 8, 2016, the date upon which the case was administratively adjourned, and that from January 8 to May 9, the date the parties chose as a date certain, are not chargeable to the People. First, on October 26, the People answered ready, on the record, in the presence of defense counsel. Cajigas, 224 AD2d at 372; Armstrong, 163 Misc 2d at 590. This had the affect of stopping the speedy trial clock until the next adjourned date, which was originally fixed for January 13, 2016. The January 8 administrative adjournment to May 9 did not affect this, since the clock had already stopped and no event occurred in the interim to restart it.

The adjournment from January 8, 2016, to May 9 is also not chargeable because it was a post-readiness court adjournment for scheduling purposes, and is accordingly most analogous to a post-readiness adjournment occasioned by court congestion which is, of course, not chargeable to the People. See, e.g., People v. England, 84 NY2d 1, 4 (1994). See also People v. Cortes, 80 NY2d 201, 210 (1992) (once the People announce their readiness on the record, their obligations under CPL 30.30 are satisfied. ... [S]ubsequent delays resulting from such circumstances as Court congestion provide no basis for CPL 30.30 dismissal") (alteration, internal quotation marks and citation omitted). Unlike the recent Court of Appeals decision in People v. Barden, ___ NY3d ___, 2016 NY Slip Op 04659 (June 14, 2016), in which "pre-readiness delays arising from court congestion or court scheduling problems" were charged to the People, this case involves post-readiness adjournments. In other words, "where, as here, the People have already announced their readiness for trial [in this case, on at least 7 occasions], the period of delay due to the unavailability of the court [until May 9] is not chargeable to the People (citation omitted)." People v. Rivera, 223 AD2d 476 (1st Dept. 1996).

The Court also rejects defendant's argument that the People's statement, in an off-calendar exchange on January 5, 2016, that "Monday May 9th will work for me" was an illusory or improper statement of future readiness. In fact, was not a statement of readiness at all. The People's comment was more analogous to a date request. While it is of course true that when the People answer "not ready" on a scheduled court date and request a particular date they are charged for that period, on the unusual facts of this case that is not what occurred. Here, the People answered "ready" on the last court date, October 26, 2015, thereby stopping the clock until the next scheduled date, January 13, 2016 . That the People then agreed to a later date, in an off-calendar exchange that occurred before January 13, did not restart the clock, since they never answered "not ready" in the interim. Accordingly, the period from January 8, the date the case was administratively adjourned, to May 9, the date that was fixed, is not chargeable to the People. It was a post-readiness adjournment attributable to the court for scheduling purposes. People v. Goss, 87 NY2d 792, 797 (1996); Cortes, 80 NY2d at 210.

Finally, the Court rejects the defendant's argument that its consent was "null and void" because it was induced by the People's representation, which proved to be inaccurate, that May 9 would work as a trial date. The Court first notes that there was no bad faith on the part of the [*4]People. When they agreed to the May 9 date, they had every reason to believe that they could try the case then. They should not be faulted for the fact that circumstances beyond their control rendered this belief inaccurate.

But more fundamentally, defendant's claim misconstrues what he was actually consenting to. Defendant was not asked to, and did not consent to, the exclusion of speedy trial time for a period in which the time would otherwise have been chargeable. The time was already excludable because the People answered "ready"at the last calendar call, on October 26, 2015, and had not answered "not ready" in the interim.

The only thing defendant consented to was the length of the adjournment - from January to May - but that is immaterial on the particular facts of this case. Given that the clock was already stopped, this period would have been excludable even if defendant had requested a shorter date or objected to the length of the adjournment, since, unlike in Barden, the case was in a post-readiness posture. In addition, even applying Barden here, defense counsel's consent to the May 9 date was "clearly expressed." When given a list of possible trial dates, it was defense counsel herself who indicated that she "preferred" May 9. Accordingly, as in Barden, "counsel explicitly requested and, by actively participating in setting the later date, clearly expressed her consent to that additional time."

11. May 9, 2016, to June 20, 2016: 0 Days Chargeable

On May 9, 2016, the People answered "not ready" for trial, because two necessary witnesses were on vacation and out of the country. The speedy trial clock would have restarted on that date, but it did not because the defense filed the instant motion. The Court directed the People to respond by May 12, and the case was adjourned to May 13 for oral argument. After hearing oral argument on May 13, the Court adjourned the case to June 20 for decision.

For this period, 0 days are chargeable to the People. CPL § 30.30(4)(a) ("reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions" is excludable). The period is excludable notwithstanding the fact that the People were not ready Cf. People v. Brown, 195 AD2d 310 ( 1st Dept 1993). The motion schedule "triggered one of the statutory exclusions . . . which applies when the People are otherwise unable to proceed to trial . . . ., " People v. Cambridge, 230 AD2d 649, 650 (1st Dept. 1996), and stopped the speedy trial clock. See People v. Aragon, 177 Misc 2d 316, 318 (Crim. Ct. Bronx County 1998); People v. Delacruz, 241 AD2d 328, 328-29 (1st Dept. 1997); People v. Taylor, 217 AD2d 404, 404-05 (1st Dept. 1995).

B. Conclusion

As detailed above, 4 days are chargeable to the People. Defendant's motion to dismiss pursuant to CPL § 30.30 is accordingly denied.

III. CPL § 30.20

The defendant also moves to dismiss the action pursuant to CPL §30.20. After examining the factors enunciated in People v. Taranovich, 37 NY2d 442 (1975), the Court is compelled to deny this portion of the defendant's motion. While 567 days have elapsed since the commencement of the action, only 4 days of delay can be directly attributed to the People. Much of the delay was due to court congestion. Moreover, the defendant has not been incarcerated during the pendency of this action, and the record is devoid of any prejudice caused by the delay. [*5]The defendant's motion to dismiss the accusatory instrument pursuant to C.P.L. §30.20 is, therefore, denied.

IV. CONCLUSION

The defendant's motion to dismiss pursuant to CPL § 30.30 and CPL § 30.20 is denied.

This constitutes the Decision and Order of the Court.

Dated: June 20, 2016

New York County, New York

Steven M. Statsinger

Judge of the Criminal Court

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