People v Canady (Earl)

[*1] People v Canady (Earl) 2015 NY Slip Op 51942(U) Decided on December 31, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 31, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., SOLOMON and ELLIOT, JJ.
2013-1633 K CR

The People of the State of New York, Appellant,

against

Earl Canady, Respondent.

Appeal from an order of the Criminal Court of the City of New York, Kings County (ShawnDya L. Simpson, J.), dated April 29, 2013. The order, insofar as appealed from as limited by the brief, upon reargument, granted the branch of defendant's motion seeking to dismiss the accusatory instrument on the ground that he was denied his statutory right to a speedy trial pursuant to CPL 30.30.

ORDERED that the order, insofar as appealed from, is affirmed.

On February 8, 2011, a misdemeanor accusatory instrument was filed, charging defendant with, among other things, assault in the third degree (Penal Law § 120.00 [1]). The People declared that they were ready for trial. The case was adjourned to February 23, 2011 for open file discovery (OFD).

On February 23, 2011, defendant appeared with counsel in Criminal Court. The court asked defendant's counsel, "So, when do you want OFD? When do you anticipate putting it on for trial?" Defendant's counsel replied, "Put it on for trial on March 2." The court directed the People to "[h]ave OFD by February 28," and adjourned the case to March 2, 2011. On March 2, 2011, the prosecutor served discovery material on defendant's counsel. However, the prosecutor announced that the People were not ready, because the assigned assistant district attorney was "engaged in trial." The People requested an adjournment until March 8, 2011. The court charged the People with the period from March 2nd to March 8th, and adjourned the case to April 19, 2011. It is undisputed that the People served and filed an off-calendar statement of readiness on April 18, 2011.

On April 19, 2011, the People announced that they were not ready. The court adjourned the case to June 21, 2011, indicating that the "People will be charged until they file a statement of readiness." The record of the calendar call does not indicate a reason for the adjournment. However, the "Record of Court Action" contains the handwritten notation "ã No File."

On June 21, 2011, the People indicated, and defendant's counsel agreed, that an off-calendar statement of readiness had been served and filed on May 4, 2011. The People announced that they were ready for trial, and noted that the "file indicates that the complaining witness is on alert." The court adjourned the case to September 13, 2011. On September 13, 2011, the People again announced that they were ready for trial, and that their "[w]itness is on alert." The court adjourned the case to November 9, 2011.

On November 9, 2011, the People were not ready because the arresting officer was [*2]unavailable, and requested a one-week adjournment. The court adjourned the case to January 12, 2012. On January 12, 2012, the People indicated that they were not ready, and requested an adjournment to January 18, 2012. The Court adjourned the case to February 23, 2012, and charged the People "until January 18 at their request."

On February 23, 2012, the People indicated that they were not ready because the "complaining witness is unavailable." The court asked if the complaining witness had been spoken to, and whether the witness was cooperative. The prosecutor replied that the "last contact" with the complaining witness "looks to be in September" 2011. "However, the People have spoken with the complaining witness' family in February, but can't reach the complaining witness." The court adjourned the case to April 13, 2012, but the next court date was May 1, 2012. A statement of readiness was served off-calendar on March 2, 2012.

On May 1, 2012, the People stated that they were not ready as "a new ADA was assigned," and asked for a one-week adjournment. The court adjourned the case to June 20, 2012. However, the next court date was June 19, 2012. On June 19, 2012, the People announced that they were ready. The defense attorney requested an adjournment. The court adjourned the case to August 15, 2012.

On August 15, 2012, the People indicated that they were not ready, and asked for a two-week adjournment because the "ADA needs time to investigate further," and that they believed that there was "a newly assigned ADA" in this case. The court indicated that the People would be charged "until a statement of readiness is served." The case was adjourned to October 3, 2012. A statement of readiness was served off-calendar on September 6, 2012.

On October 3, 2012, the People announced that they were not ready, because the assigned assistant district attorney was engaged in another part, and requested a one-week adjournment. The court adjourned the case to December 4, 2012, and directed that the People be charged with post-readiness delay until a statement of readiness was served off calendar. A statement of readiness was served on October 9, 2012.

On December 4, 2012, the People announced that they were ready. Defendant's counsel stated that he was serving and filing a motion to dismiss the accusatory instrument on the ground that defendant was denied his statutory right to a speedy trial pursuant to CPL 30.30.

In a decision and order dated January 30, 2013, the Criminal Court (ShawnDya Simpson, J.) charged the People with 111 days of delay, including 62 days of delay from October 3, 2012 until December 4, 2012. Thus, the court granted defendant's speedy trial motion and dismissed the accusatory instrument. The court stayed sealing the accusatory instrument for 30 days. The decision was announced in court on February 5, 2013.

On or about February 15, 2013, the People moved for, among other things, leave to reargue their opposition to defendant's speedy trial motion, on the ground that the court had erred in charging them with 62 days of delay, because an off-calendar statement of readiness had been served and filed on October 9, 2012. The court granted leave to reargue and, upon reargument, charged the People with a total of only 55 days of delay, and denied defendant's speedy trial motion.

On or about March 19, 2013, defendant moved for leave to reargue the speedy trial motion, asserting, among other things, that the court had overlooked an argument that the period from November 9, 2011 until March 2, 2012, a total of 114 days, should be charged to the People, based on their statement at the February 23, 2012 court appearance, that the People had not been in contact with the complaining witness since September 2011.

By decision and order dated April 29, 2013, the Criminal Court (ShawnDya Simpson, J.) granted defendant leave to reargue and, upon reargument, granted the branch of defendant's motion seeking to dismiss the accusatory instrument. The court charged the People with 71 days of delay, which the People concede are chargeable to them. However, the court also charged the People with seven days of delay, from February 23, 2011 to March 2, 2011, for failing to timely provide defendant's counsel with open file discovery. It charged the People with an additional 47 days of delay from March 2, 2011 to April 18, 2011, as the People were not ready on March 2, [*3]2011, and asked for an adjournment to March 8, 2011. The court determined that "the People filed a statement of readiness on April 18, 2011, indicating their actual date of readiness." The People concede that six of these 47 days, to wit, March 2, 2011 until March 8, 2011, are chargeable to them. (Thus, the People concede that a total of 77 days of delay are chargeable to them). Finally, the court charged the period from February 4, 2013 (presumably the court meant February 5, 2013), when the accusatory instrument was dismissed upon the court granting the original CPL 30.30 motion, to February 15, 2013, when the People moved for reargument. (It is noted that the court counted this as 15 days.) The court did not address defendant's claim that an additional 114 days of delay were chargeable to the People, as it determined that the People were chargeable with a total of 140 days of delay.

As limited by their brief, the People appeal from so much of the order dated April 29, 2013 as, upon reargument, granted the branch of defendant's motion seeking to dismiss the accusatory instrument.

Under the circumstances presented, the People were required to be ready for trial within 90 days of the filing of the misdemeanor accusatory instrument (see CPL 30.30 [1] [b]; People v South, 29 Misc 3d 92, 95 [App Term, 9th & 10th Jud Dists 2010]).

The Criminal Court erred in charging the People with seven days of delay, from February 23, 2011 to March 2, 2011, in connection with providing the defense with open file discovery (see People v Caussade, 162 AD2d 4, 8 [1990]; People v Thomas, 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; People v Dorilas (Pascal), 19 Misc 3d 75 [App Term, 2d & 11th Jud Dists 2008]). The People provided the defense with open file discovery within 22 days, which was a reasonable amount of time to do so (see People v Thomas, 26 Misc 3d 144[A], 2010 NY Slip Op 50441[U]; People v Kelly, 44 Misc 3d 1211[A], 2014 NY Slip Op 51088[U] [Crim Ct, Kings County 2014]; People v Singh, 42 Misc 3d 1235[A], 2014 NY Slip Op 50371[U] [Crim Ct, Queens County 2014]; but see People v Lloyd, 202 AD2d 1035 [1994]; People v Corriette, 25 Misc 3d 141[A], 2009 NY Slip Op 52462[U] [App Term, 9th & 10th Jud Dists 2009]). In addition, the February 23, 2011 transcript clearly indicates that defendant's counsel requested that the court put the case on for trial on March 2, 2011. Thus, this period of delay is excludable because the adjournment was requested by the defense.

The Criminal Court also erred in charging the period from February 4, 2013 (sic) to February 15, 2013 to the People. It is well settled that the time for the People to make pretrial motions, including the time between an order granting a motion to dismiss pursuant to CPL 30.30 and a People's motion to reargue motions pursuant CPL 30.30, is excludable (see CPL 30.30 [4] [a]; People v Jennings, 248 AD2d 265, 267 [1998]; People v Chapman, 185 AD2d 892, 892-893 [1992]; People v Pomales, 159 AD2d 451, 451-452 [1990]; see also People v Reed, 19 AD3d 312, 315 [2005]).

After defendant was arraigned on the misdemeanor charges, the People announced in open court that they were ready for trial. Thus, when the People subsequently indicated that they were not ready, they ordinarily would be charged only with the time periods of the adjournments they specifically request, as the statement of readiness satisfies the People's obligations pursuant to CPL 30.30. Any adjournment in excess of the time requested would be excluded (see People v Carter, 91 NY2d 795, 799 [1998]; People v Boumoussa, 104 AD3d 863 [2013]; People v Hernandez, 92 AD3d 802, 803 [2012]; People v Camillo, 279 AD2d 326 [2001]; People v Dushain, 247 AD2d 234, 236 [1998]).

However, a statement of readiness contemplates the People's present readiness, "not a prediction or expectation of future readiness" (People v Kendzia, 64 NY2d 331, 337 [1985]). "The test is whether the People are able to present their case and do so immediately. . . . The statement must be made in good faith and reflect an actual, present state of readiness" (People v Robinson, 171 AD2d 475, 477 [1991] [citations omitted]; see People v Peters, 31 Misc 3d 131[A], 2011 NY Slip Op 50593[U] *2 [App Term, 9th & 10th Jud Dists 2011]). A post-readiness declaration by the People that they are not ready does not necessarily render a prior [*4]statement of readiness illusory (see People v Brown, 126 AD3d 516, 518 [2015]; People v South, 29 Misc 3d at 95-96). The People may be charged with post-readiness delay "only where and to the extent a delay is actually caused by them" (People v Dushain, 247 AD2d at 236; see People v Carter, 91 NY2d at 799; People v Cortes, 80 NY2d 201, 210 [1992]; People v Anderson, 66 NY2d 529, 536 [1985]). "[O]nly those delays which are attributable to the inaction of the People and directly implicate their ability to proceed with trial are charged against" the People (People v Lynch, 103 AD3d 919, 920 [2013]). Nevertheless, readiness for trial "is not an empty declaration that the People are prepared to present their direct case" (People v England, 84 NY2d 1, 4 [1994]).

It is well settled that a statement of readiness is presumed to be truthful and accurate (see People v Sibblies, 22 NY3d 1174, 1180 [2014] [Graffeo, J., concurring]; People v Miller, 113 AD3d 885, 887 [2014]; People v Acosta, 249 AD2d 161 [1998]). In the case at bar, the People announced that they were not ready on March 2, 2011, because the assigned assistant district attorney was engaged in trial, and requested an adjournment to March 8, 2011. The court adjourned the case to April 19, 2011.

On April 18, 2011, the People served and filed an off-calendar statement of readiness. The next day, April 19, 2011, the People announced in court that they were not ready, without providing a reason. The "Record of Court Action" contains the handwritten notation "ã No File." "In the postreadiness context, the People bear the burden of ensuring that the record explains the cause of adjournments sufficiently for the court to determine which party should properly be charged with any delay" (People v Stirrup, 91 NY2d 434, 449 [1998]; see People v Cortes, 80 NY2d at 215-216). Here, the People failed to provide any reason why they were not ready on April 19, 2011, one day after filing an off-calendar statement of readiness, and, thus, did not meet their burden. Consequently, in accordance with the respective concurring opinions in People v Sibblies of Chief Judge Lippman (22 NY3d at 1178-1179) and of Judge Graffeo (22 NY3d at 1180-1181), the off-calendar statement of readiness dated April 18, 2011 was illusory (see also People v England, 84 NY2d at 4; People v Cortes, 80 NY2d at 217; People v Vivola, 13 Misc 3d 128[A], 2006 NY Slip Op 51744[U] [App Term, 2d & 11th Jud Dists 2006]; People v Thomas, 6 Misc 3d 126[A], 2004 NY Slip Op 51675[U] [App Term, 2d & 11th Jud Dists 2004]; People v Jackson, 46 Misc 3d 1214[A], 2015 NY Slip Op 50057[U] [Crim Ct, Kings County 2015]; cf. People v Scarborough, 122 AD3d 473, 474 [2014]).

The People concede that 77 days of the delay are chargeable to them, including six days of delay in the period from March 2, 2011 until April 18, 2011, i.e., from March 2, 2011 to March 8, 2011. However, the Criminal Court correctly determined that an additional 41 days of delay in that period, i.e., from March 8, 2011 until April 18, 2011, was chargeable to the People. Consequently, we find that a total of 118 days of the delay was chargeable to the People, and that, upon reargument, the Criminal Court correctly granted the motion to dismiss the accusatory instrument on statutory speedy trial grounds.

In light of our determination, we need not reach defendant's claim that an additional 114 days of delay, from September 13, 2011 until March 2, 2012, were chargeable to the People.

Accordingly, the order, insofar as appealed from, is affirmed.

Aliotta, J.P., Solomon and Elliot, JJ., concur.

Decision Date: December 31, 2015