People v Lopez

[*1] People v Lopez 2017 NY Slip Op 50891(U) Decided on July 10, 2017 City Court Of Mount Vernon Armstrong, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 10, 2017
City Court of Mount Vernon

The People of the State of New York,

against

Franklin R. Lopez, Defendant.



15-2749



Westchester County District Attorney

Mount Vernon branch

Judith E. Permutt, Esq.

Attorney for Defendant

571 White Plains Road

Mount Vernon, New York 10709
Adrian N. Armstrong, J.

The defendant is charged by superseding misdemeanor information with one count of Criminal Impersonation in the Second Degree (P.L. § 190. 25), one count of Driving While Intoxicated in violation of V.T.L. § 1192(2), one count of Driving While Intoxicated in violation of V.T.L. § 1192(3), and several traffic infractions.

Defendant moves to dismiss the accusatory instrument pursuant to C.P.L. § 30.30 on speedy trial grounds. Defendant contends in his motion papers that since the defendant is charged with A misdemeanors the People are required by C.P.L. § 30.30(1)(b) to be ready for trial within ninety (90) days. It is the defendant's position that all of the adjournments from October 17, 2016 through to May 9, 2017 were at the People's request and therefore, the People are charged with all of the time for that period which totals 204 days.

In opposition, the People contend that since the defendant was originally charged with a felony, pursuant to CPL §30.30(1)(b) they have six months or 180 days [*2]to be ready for trial [FN1] . The People further contend that they have been ready on the misdemeanor DWI charges, and have stated as such on the record, since the defendant was arraigned on the original felony complaint. With respect to the criminal impersonation charge, the People summarily contend that they have not accrued more than 180 days of chargeable time. Specifically, the People assert that every adjournment from January 25, 2015, the date of defendant's arraignment on the original felony complaint, to November 2, 2015 was at the defendant's request. The People contend that they stated ready on the criminal impersonation charge the day they filed the superseding misdemeanor information on November 19, 2015 . The People further contend that the time attributed to their post-readiness adjournments from October 18, 2016 through to May 2, 2017 is excludable due to the exceptional circumstance of P.O. Delitta being medically unable to testify pursuant to CPL 30.30(4)(g). Specifically, the People assert that P.O. Delitta suffered a serious accident while training to become a motorcycle officer which resulted in numerous injuries including a broken leg. The people further assert that P.O. Delitta's injuries required several surgeries and that he suffered from complications including a staph infection that required at least one additional surgery. The People further contend that he remains injured, that he is unable to testify and that as of June 9, 2017, the date of their opposition papers, he has yet to return to work.

Pursuant to C.P.L. § 30.30(5)(c), when a criminal action is commenced by the filing of a felony complaint that is later replaced by a misdemeanor information, the period applicable for determining the amount of time in which the People must be ready for trial is the period applicable to the new charges, calculated from the date of the filing of such new accusatory instrument, or six months from the filing of the felony complaint, whichever is shorter. In other words, where the aggregate of the period of time applicable to the new charges and the period of chargeable time already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, excluding the periods provided in C.P.L. § 30.30(4), the applicable period is six months from the filing of the felony complaint.

People v. Cooper, 98 NY2d 541 (2002); People v. Spector, 181 Misc 2d 522(Crim Ct. NY County 1999); People v. Hashim, 48 Misc 3d 532 (Sup. Ct. Kings Cty 2015)(explaining that where charges are reduced from a felony to a misdemeanor the applicable time period is the lesser of the remainder of the original six month period or the applicable period of the charge as reduced).

Moreover, the People's failure to timely proceed on one count of an accusatory instrument does not necessarily adhere to the remaining counts upon which the People could be ready for trial. As such, speedy trial computations under C.P.L. § 30.30 must, as a matter of course, involve distinct considerations with respect to individual counts of a single accusatory instrument. People v. Minor, 144 Misc 2d 846 (2nd Dept. App. Term 1989); People v. Gray, 7 Misc 2d 127(A) (2nd Dept. App. Term 2004).

The point of commencement of an action for speedy trial purposes is the filing of the first accusatory instrument. People v. Lomax, 50 NY2d 351 (1980); see also, People v. Stirrup, 91 NY2d 434 (1998). The actual date of filing is not includable in the calculation. People v. Stiles, 70 NY2d 765 (1987). The burden is on the People to prove their entitlement to statutory speedy trial exclusions for pre-readiness delays. People v. Luperon, 85 NY2d 71 (1995).

Upon review of the submissions of the parties, a review of the available transcribed stenographic minutes and a review of the official court file, the Court makes the following findings:

In the case at bar, the People filed the first accusatory instrument, that being the felony complaint, with the Court on January 26, 2015 and as such, that is the date of the commencement of the action. See People v. Smietana, 98 NY2d 336 (2002); People v. Hauben, 12 Misc 3d 1172A (Dist. Ct. Nassau 2006); People v. Griffen, 141 Misc 2d 627 (Crim. Ct. Queens Cty. 1988).The defendant was arraigned on the accusatory instrument on the same date. TASC was assigned as a condition of bail and the People filed a supporting deposition with respect to the DWI charges and stated ready on the record with respect to the DWI charges. The matter was adjourned to January 29, 2015 for a hardship hearing at the defendant's request and as such, this period of time is excludable. On January 29, 2015 defendant's request for a hardship was denied and the matter was adjourned to February 26, 2015 at the defendant's request. Accordingly, this period of time is excludable. On February 26, 2015 the defendant failed to appear and a warrant letter was mailed to the defendant notifying him of the next court date for March 19, 2015. Due to the defendant's failure to appear, this period of time is excludable. On March 5, 2015, the case was accelerated and added to the court calendar. Defendant appeared and the matter was adjourned to April 23, 2015 for a TASC update on consent of the defendant. On April 23, 2015 TASC presented a favorable report on the defendant's progress and the matter was again adjourned at the defendant's request to May 28, 2015. On May 28, 2015 TASC presented a favorable report on the defendant's progress and the matter was adjourned at the defendant's request for a possible disposition to June 11, 2015. Accordingly, the period of time from March 5, 2015 to June 11, 2015 is excludable. On June 11, 2015 the matter was adjourned to July 28, 2015 for a felony hearing at the defendant's request. Accordingly, this period of time is excludable. On July 28, 2015 TASC presented a favorable report on the defendant's progress, they were relieved and the matter was adjourned to August 20, 2015 in the DWI part at the request of the People. As such, this period of time, 23 days, is chargeable to the People with respect to all charges. On August 20, 2015 the matter was adjourned to September 24, 2015 at the defendant's request. As such, this period of time is excludable. On September 24, 2015 the matter was adjourned to November 2, 2015 for a felony hearing on the consent of the defendant. Therefore, this period of time is excludable. On November 2, 2015 the People were not ready to go forward with the hearing on the felony criminal impersonation charge but stated ready on the DWI charges. The matter was adjourned to November 19, 2015 for the People to file a superseding misdemeanor information. This period of time, 17 days, is chargeable with respect to the criminal impersonation charge only as the People were not ready with respect to that charge.

On November 19, 2015 the People filed the superseding misdemeanor information, new counsel was assigned to the defendant, defendant was arraigned on the new accusatory instrument and the People stated ready on all counts. The matter was adjourned to January 21, 2016 at the defendant's request. Accordingly, this period of time is excludable. The matter was then repeatedly adjourned on January 21, 2016, February 4, 2016 and March 3, 2016 for motion practice. As such, those periods of time are excludable. On March 17, 2016 the People consented to hearings and the matter was adjourned to May 18, 2016 for the hearings to be held. On May 18, 2016 although the People were not ready the defendant failed to appear and the matter was adjourned to June 2, 2016. A warrant letter was sent to the defendant advising him of his required appearance on June 2, 2016. Due to the defendant's non-appearance on May 18, 2016 this period of time is excludable. On June 2, 2016, defendant appeared and the matter was adjourned for the hearings to be held on July 12, 2016 at the defendant's request. On July 12, 2016 hearings were held, the Court's decision rendered and the matter was adjourned to September 8, 2016 for a jury trial at the defendant's request. On September 8, 2016 the matter was adjourned to September 19, 2016 on consent. Accordingly, the time from June 2, 2016 to September 19, 2016 is excludable. On September 19, 2016 the matter was adjourned to October 4, 2016 due to court congestion and with defendant's consent. On October 4, 2016 the matter was again adjourned to October 17, 2016 for trial with the defendant's consent. On October 17, 2016 the matter was adjourned to October 18, 2016 for jury selection to begin. Defendant consented to said adjournment. Accordingly, the time from September 19, 2016 to October 18, 2016 is excludable. The matter was then repeatedly adjourned on October 18, 2016, October 24, 2016, November 1, 2016, January 10, 2017, February 7, 2017 and March 7, 2017 at the People's request since they were not ready for trial due to P.O. Delitta being medically unable to testify at trial, which constitutes a total of 203 days. On May 9, 2017 the matter was adjourned so that defendant could file the instant motion thereby stopping the speedy trial clock.

As an initial matter, as of the filing of the superseding misdemeanor information on November 19, 2016, only 23 days were chargeable to the People on the DWI charges and 40 days were chargeable to the People on the criminal impersonation count in the original accusatory instrument. As such, pursuant to C.P.L. § 30.30(5)(c) the People have 90 days from November 19, 2016 to be ready for trial on all counts of the pending accusatory instrument. From November 19, 2015 to October 18, 2016 the adjournments were either at the defendant's request, for motions to be submitted and decided or on consent of the defendant and as such, there are no days chargeable to the People for this period of time.

C.P.L. § 30.30(3)(b) states that a motion made pursuant to C.P.L. § 30.30(1) or (2) "may be denied where the people are not ready for trial if the people were ready for trial prior to the expiration of the specified period and their present unreadiness is due to some exceptional fact or circumstance, including but not limited to, the sudden unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available within a reasonable period. See also, C.P.L. § 30.30(4)(g) (analogous pre-readiness provision). As such, C.P.L. § 30.30(3)(b) [*3]allows exceptional circumstances to justify periods of delay not expressly covered by the statute, even in the absence of a formal continuance. Specifically, the unavailability of a principal prosecution witness, for medical reasons, has been held to be a sufficient exceptional circumstance to warrant the exclusion of the period of delay. People v. Goodman, 41 NY2d 888 (1977); People v. Celestino, 201 AD2d 91 (1st Dept. 1994); People v. Alcequier, 15 AD3d 162 (1st Dept. 2005); People v. Lindsey, 52 AD3d 527 (2nd Dept. 2008); People v. Rivera, 212 AD2d 1040 (4th Dept. 1995) (holding that 26 day post-readiness delay caused by prosecution witness medical problems is a sufficient exceptional circumstance to warrant the exclusion of that period of delay).

However, in order for the exceptional circumstance exclusion to apply under C.P.L. § 30.30(3)(b), it is the People's burden to show (i) the unavailability of a material witness (ii) due diligence in making that witness available and (iii) a reasonable expectation of the witness' future availability. See People v Zirpola, 57 NY2d 706 (1982); People v. Spadafora, 131 AD2d 40 (1st Dept. 1987). Moreover, the statutory "unavailable evidence" example of "exceptional circumstances" manifests a clear indication of a legislative intent that a delay will not be considered reasonable unless a probable date of witness availability, supported by a factual basis, can be projected. Spadafora, at 46; People v Harris, 49 Misc 3d 1206(A) (Crim. Ct. NY Cty. 2015).

In the case at bar, the Court finds that the People have shown that P.O. Delitta is a material witness since he was the officer who performed the breathalyzer test on the defendant and that he has been unavailable due to his ongoing medical condition resulting from a serious motorcycle accident which required surgery and led to additional medical complications. The People have also demonstrated their due diligence in trying to make P.O. DeLitta available in that they kept themselves and the Court apprised of P.O. DeLitta's ongoing condition throughout the almost seven (7) months of adjournments since October 18, 2016.

However, the People have failed to demonstrate a reasonable expectation of the witness' future availability. The People failed to provide any information regarding a possible date P.O. DelIitta would return to work or be able to testify on this matter in their papers. Rather, all that was asserted by the People was that as of the date of their papers P.O. DeLitta had not returned to work without any information regarding a possible date by which he would be available to testify. Without such a showing, the People fail to establish that they are entitled to exclude the period of time from October 18, 2016 to May 9, 2017 under the exceptional circumstance exclusion under C.P.L. § 30.30(3)(b). Therefore, the entire 203 day period from October 18, 2016 to May 9, 2017 is chargeable to the People.

Based upon the foregoing, in total, the People are charged with 226 days on the DWI charges and 243 days on the criminal impersonation charge. As such, the People have exceeded the 90 days afforded by C.P.L. 30.30(1)(b) and 5(c).

Accordingly, the defendant's motion to dismiss the superseding misdemeanor information pursuant to C.P.L. § 30.30 is granted.

This constitutes the Decision and Order of this Court.

Dated: July 10, 2017

Mount Vernon, New York

_____________________________________

HON. ADRIAN N. ARMSTRONG

City Judge of Mount Vernon Footnotes

Footnote 1:On the contrary, if the top count is a felony, the time period is six calendar months, not 180 days. See General Construction Law § 30. As such, the six month time period may be as short as 181 days and as long as 184 days.