People v Foster
Annotate this CaseDecided on May 18, 2016
Criminal Court of the City of New York, New York County
THE PEOPLE OF THE STATE OF NEW YORK,
against
Michael Foster, Defendant.
2015NY013470
Guy H. Mitchell, J.
The defendant was arraigned on February 28, 2015 and charged with Driving While Intoxicated (Vehicle and Traffic Law § 1192[3]), Driving While Intoxicated per se (Vehicle and Traffic Law § 1192[2]) and Driving While Ability Impaired (Vehicle and Traffic Law § 1192[1]). By notice of motion served and filed on March 3, 2016, he has moved for an order dismissing the charges based on the People's failure to be ready for trial pursuant to Criminal Procedure Law § 30.30[1] and because his due process rights have been violated. The People served and filed their response on April 19, 2016.
Statutory Speedy Trial Claim
Because the most serious crime the defendant was charged with is a class A misdemeanor, the People were required to be ready for trial within ninety days of commencement of the criminal action, absent excludable time (CPL 30.30 [1][b]). In his motion to dismiss, the defendant argues that more than ninety days are chargeable to the People. Because the court finds that 127 days are charged to the People, the defendant's motion is granted with respect to the two misdemeanor charges.
On February 28, 2015, the defendant was arraigned on an information, and the court adjourned the case until April 20, 2015 for motions. This entire adjournment is excluded (CPL 30.30[4][a]).
On April 20, 2015, the People consented to hearings and the court adjourned the case until May 12, 2015 for hearings and trial. The court finds this entire adjournment is excluded as a reasonable period for the People to prepare for trial after the granting of hearings (CPL 30.30[4][a]; see also People v Reed, 19 AD3d 312 [1st Dept 2005]; People v Phillips, 70 AD3d 562 [1st Dept 2010]; People v Sinisgalli, 28 Misc 3d 135(A) [App Term 1st Dept 2009]).
On May 12, 2015, the People answered not ready for trial, and the court adjourned the case until June 11, 2015. On June 3, 2015, the People served and filed a certificate of readiness dated June 2, 2015. The People argue that this tolled the statutory speedy trial clock as of June 2, 2015 (see People v Kendzia, 64 NY2d 331 [1985]; People v Stirrup, 91 NY2d 434 [1998]). The defense argues that since the People answered not ready on the next date of June 11, 2015, they should be charged with the whole adjournment.
This court finds that the certificate of readiness tolled the statutory speedy trial clock on June 3, 2015. First, statements of readiness made in the absence of defense counsel are deemed effective at the time of filing as long as defense counsel is [*2]promptly notified (see People v Anderson, 252 AD2d 399 [1st Dept 1998]). Second, as the People explained in their response and as reflected on the court action sheet, the People were not ready on June 11, 2015 because the arresting officer was unavailable that day (see People v Cortez, 80 NY2d 201, 215-216 [1992]; People v Brown, 126 AD3d 516 [1st Dept], leave granted 25 NY3d 1160 [2015]; compare People v Sibbles, 22 NY3d 1174 [2014] [statement of readiness found not valid when subsequent explanation of People's unreadiness for trial showed prior statement did not reflect People's actual readiness]; People v Rodriguez, 135 AD3d 587 [1st Dept 2016] [off-calendar statement of readiness found not valid when the People answered not ready on subsequent court date without any explanation for the change in position]). Nothing in the record casts doubt on the June 3, 2015 statement of readiness. The court finds that 22 days of this adjournment are charged to People.
On June 11, 2015, the People answered not ready for trial because the arresting office was unavailable. The court adjourned the case until July 21, 2015, the date requested by the defendant. The People served and filed a certificate of readiness on July 13, 2015 and argue that this tolled the statutory speedy trial clock (Kendzia, 64 NY2d 331; Stirrup, 91 NY2d 434). The defendant repeats his argument that because the People answered not ready subsequently on July 21, 2015, the certificate of readiness should be found illusory. However, the People were not ready on July 21, 2015 because the assigned assistant district attorney was in Midtown Community Court and unavailable for trial. This court finds that the People tolled the speedy trial clock on July 13, 2015. Accordingly, 32 days of this adjournment are charged to People.
On July 21, 2015, the People answered not ready for trial because the assigned district attorney was unavailable but requested July 28, 2015. The court adjourned the case until September 10, 2015. The defense argues that this entire adjournment should be charged to the People because they had never validly stated ready for trial. However, because this court has found both certificates of readiness valid, the People are charged for post-readiness adjournments only when the delay is exclusively attributable to the People and cannot otherwise be excluded under Criminal Procedure Law § 30.30[4] (Cortes, 80 NY2d at 210; People v Anderson, 66 NY2d 529, 535-36 [1985]; People v Urraea, 214 AD2d 378 [1st Dept 1995] [in the post-readiness context the People are only charged with the actual period requested]; People ex rel Sykes v
Mitchell, 184 AD2d 466 [1st Dept 1992]). Therefore, the court finds that 7 days of this adjournment are charged to the People.
On September 10, 2015, the People answered not ready for trial because the arresting officer was unavailable and they requested September 14, 2015. The court adjourned the case until October 14, 2015. As with the prior adjournment, the court finds that only the days requested are charged to the People. Accordingly, 4 days of this adjournment are charged to the People.
On October 14, 2015, the People answered not ready for trial and the court adjourned the case until November 19, 2015. The People served and filed a certificate of readiness on October 19, 2015. The defendant argues the certificate of readiness was illusory and that the People should be charged for the entire adjournment. The People respond that certificates of readiness should be presumed valid and they were [*3]not ready on October 14, 2015 because a necessary witness was unavailable. Although the court action sheet does not reflect any such explanation by the People on October 14, 2015, this court finds the October 19, 2015 certificate of readiness valid. Therefore, only 5 days of this adjournment are charged to the People.
On November 19, 2015, the People answered not ready because the assigned assistant district attorney was on trial but they requested November 25, 2015. The court adjourned the case until January 12, 2016. Each side makes similar arguments as above regarding how many days of this adjournment should be charged to the People. This court finds that 6 days of this adjournment are charged to the People.
On January 12, 2016, the People answered not ready for trial, gave no explanation, but requested January 15, 2016. The court adjourned the case to January 15, 2016. The People concede and the court finds the 3 days of this adjournment are charged to the People.
On January 15, 2016, the court's action sheet indicates that the People answered not ready for trial and the court adjourned the case to February 24, 2016 for hearings and trial. The court file contains a certificate of readiness dated January 22, 2016.
The People argue in their response that the defendant failed to appear on January 15, 2016, but that a bench warrant was stayed by the court at the defense counsel's request. Additionally, unlike the three prior certificates of readiness where the People argued at length for the court to find each certificate of readiness valid, the People do not mention the January 22, 2016 certificate of readiness in their response. The defense argues that this certificate of readiness is illusory and that the People should be charged with the entire adjournment from January 15, 2016, a date the People requested on January 12, 2016, until February 24, 2016.
The court action sheet contradicts the facts asserted by the People in their response that the defendant failed to appear and the court stayed a bench warrant. In fact, the presiding judge marked that the adjournment from January 15, 2016 until February 24, 2016 would be charged to the People. Furthermore, it is the People's burden to ensure that the reason for an adjournment is "sufficiently clear to enable the court considering" a Criminal Procedure Law § 30.30 motion to make an informed decision as to what period should be charged to the People (see People v Cortez, 80 NY2d 201, 215-216 [1992]). The People's argument that the defendant did not appear in court on January 15, 2016 is contrary to the record. The People's failure to assert that the January 22, 2016 certificate of readiness was valid is no less puzzling. The court finds that the 40 days of this adjournment are charged to the People.
On February 24, 2016, the People answered not ready for trial because the assigned assistant district attorney was in training but requested March 3, 2016. The court adjourned the case until March 3, 2016. The People concede and the court finds that the 8 days of this adjournment are charged to them.
On March 3, 2016, the People answered ready for trial, and the defendant served and filed the instant motion. The court directed the People to respond by March 22, 2016 and adjourned the case until April 20, 2016 for its decision. The People served and filed their response four weeks late and the court was forced to adjourn the case [*4]for its decision from April 20, 2016 until May 18, 2016. The entire period from March 3 until May 18 is excluded (CPL 30.30[4][a]).
The Court finds that 127 days are charged to the People. Accordingly, defendant's motion to dismiss pursuant to Criminal Procedure Law § 30.30[1] is granted with respect to the two misdemeanor charges.
The charge of Driving While Ability Impaired under Vehicle and Traffic Law § 1192[1] remains because it is not subject to dismissal pursuant to Criminal Procedure Law § 30.30 (see People v Taylor, 189 Misc 2d 313 [App Term 2nd Dept 2001]; People v Gonzalez, 168 Misc 2d 136 [App Term 1st Dept 1996], appeal denied 88 NY2d 936 [1996]).
Due Process Claim
The defendant also claims this case should be dismissed because he has been denied his due process right to a speedy trial (United States Constitution, 6th & 14th Amendment; New York Constitution, Article I, § 6). The defendant argues that his memories and that of his witnesses have faded because of the delay and thereby he has been prejudiced. The People did not respond to this argument.
The Court of Appeals described five factors for courts to consider to determine whether there has been a constitutional speedy trial violation of a defendant's due process right: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there had been an extended period of pretrial incarceration; and (5) whether or not the delay has impaired the defense (see People v Taranovich, 37 NY2d 442, 445 [1975]). The court must evaluate the term "speedy trial" using a sensitive balancing of these factors with no single factor being dispositive and no formalistic precepts to resolve whether a deprivation of a defendant's right has occurred (see Doggett v United States, 505 US 647, 651 [1992]; Taranovich, 37 NY2d at 444-445). Here, because the defendant merely mentions only one factor and the People did not respond, the court must deny the defendant's due process claim.
Dated: New York, New York
May 18, 2016
Guy H. Mitchell
Judge of the Criminal Court
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