People v Cecala (Paula)

[*1] People v Cecala (Paula) 2010 NY Slip Op 50827(U) [27 Misc 3d 135(A)] Decided on May 5, 2010 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 5, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-487 RI CR.

The People of the State of New York, Appellant,

against

Paula Cecala, Respondent.

Appeal from an order of the Criminal Court of the City of New York, Richmond County (Matthew A. Sciarrino, Jr., J.), dated January 15, 2009. The order granted defendant's motion to dismiss the accusatory instrument.

ORDERED that the order is reversed, on the law, defendant's motion to dismiss the accusatory instrument is denied, the accusatory instrument is reinstated, and the matter is remitted to the Criminal Court for all further proceedings thereon.

Defendant was charged with reckless endangerment in the second degree (Penal Law § 120.20). She moved to dismiss the accusatory instrument on the ground that she had been denied her statutory right to a speedy trial (CPL 30.30 [1] [b]). The Criminal Court granted defendant's motion and dismissed the accusatory instrument, finding a total of 112 days chargeable to the People. The People appeal.

Since defendant was charged with a misdemeanor punishable by a sentence of imprisonment of more than three months and was not charged with any felonies, the People were required to be ready for trial within 90 days of the commencement of the action (see CPL 30.30 [1] [b]). The People concede that they are chargeable with 58 days and take issue only with the additional 54 days charged to them by the court for the period from September 12, 2008 to November 5, 2008.

It is undisputed that on June 19, 2008, the People declared readiness and both sides concede that, on July 2, 2008, the court adjourned the case to August 27, 2008 for discovery by stipulation. On August 27, 2008, the People did not turn over discovery, and the court adjourned [*2]the case to November 5, 2008 for trial and ordered the People to turn over discovery to defendant by September 12, 2008. On November 5, 2008, the next adjourned date, the People were not ready for trial and still had not provided defendant with discovery. While the People assert that sometime after August 27, 2008, they met with defendant and her counsel and orally disclosed to them the nature of the case and the testimony they expected their witnesses to give, the People admit that they still had in their possession some paperwork which had not been turned over to defendant.

It has been held that a post-readiness delay by the People in complying with "general discovery demands" is not chargeable to the People (see People v Caussade, 162 AD2d 4, 10 [1990]). Since the delay in the case at bar, from September 12, 2008 to November 5, 2008, was due to the People's "alleged failure to comply with the defendant's discovery demands and did not pose an impediment to commencement of the trial itself, the [Criminal] Court erred in dismissing the [accusatory instrument] rather than imposing a less severe sanction" (Caussade, 162 AD2d at 11; see also People v McKenna, 76 NY2d 59 [1990]; People v Anderson, 66 NY2d 529 [1985]).

In view of the foregoing, since the People were only chargeable with a total of 58 days, the Criminal Court improperly granted defendant's motion to dismiss the accusatory instrument.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: May 05, 2010