People v Samuel
Annotate this CaseDecided on October 20, 2005
Supreme Court, Kings County
The People of the State of New York,
against
Aaron Samuel, Defendant.
4322/05
Joel M. Goldberg, J.
By a motion, dated August 2, 2005, the defendant moved to dismiss the indictment pursuant to CPL § 30.30 (1) (a) on the grounds that the People were not ready for trial within the applicable six-month period. The People opposed in papers dated August 23, 2005. The defendant filed a reply, dated September 28, 2005.
ADJOURNMENT HISTORY
This case commenced with the filing of a felony complaint on August 5, 2004 (not August 4, 2004 as stated in the People's answer). The People had six months from this date, or 184 days, minus excludable time to be ready for trial. People v. Stiles, 70 NY2d 765 (1997) (excluding the first day in making CPL § 30.30 computations) (not 182 days as stated in the People's answer).
On August 25, 2004, Indictment Number 5034/04 was filed charging the defendant and a co-defendant, Kwashien Powell, with Robbery in the First Degree and related charges. The co-defendant subsequently plead guilty to Robbery in the Third Degree and was sentenced to a term of 1-3 years on March 11, 2005.
On August 25, 2004, the People also filed a Statement of Readiness and mailed a copy to defense counsel.
The defendant was arraigned in Part 20 on this indictment on September 20, 2004, and the case was adjourned to November 9, 2004 on consent of the defense for open file discovery in lieu of motion practice and submission of the Grand Jury minutes to the Court for inspection for legal sufficiency.
On November 9, 2004, the case was adjourned for a decision on the legal sufficiency of the Grand Jury minutes to December 14, 2004.
On December 14, 2004, the Court in Part 20 (DiMango, J.) handed down its decision. The Court dismissed the two most serious counts which charged Robbery in the First Degree and Robbery in the Second Degree as to both defendants, leaving Robbery in the Third Degree, Grand Larceny in the Third Degree, and eight lesser charges. [*2]
Although the Court's decision did not specify the statutory bases for the dismissals as listed in CPL § 210.20 (1) (a) through (i), it is clear from the decision that Count 1, Robbery in the First Degree, was dismissed because the Court believed it was "duplicitous" in violation of CPL § 200.30 (1), thus warranting the dismissal of that count as "defective" pursuant to CPL § 210.20 (1) (a) and CPL § 210.25 (1). The Court also noted that the Grand Jury's vote to indict on that count may have been nullified by a break in the proceedings taken after that vote without an instruction to "retain" that charge after the break. Arguably, if that charge was not "retained," fewer than twelve Grand Jurors, i.e., none, voted to indict on that count, rendering the proceedings as to that Count defective, pursuant to CPL § 210.20 (1) (c) and CPL § 210.35 (3).
Finally, Count 2, Robbery in the Second Degree, was dismissed, because the Court found an element of that crime, "actually present," was omitted in the prosecutor's charge. This error would justify dismissal pursuant to CPL § 210.20 (1) (c) if the Court found the error constituted a sufficient breach of the prosecutor's role as "legal advisor" to the Grand Jury pursuant to CPL § 190.25 (6) to have resulted in "prejudice to the defendant" as that term is used in CPL § 210.35 (5).
Because these counts were dismissed pursuant to CPL §§ 210.20 (1) (a) and (1) (c), the Court, pursuant to CPL § 210.20 (4), had the discretion to authorize the People to re-present these charges to the Grand Jury. As indicated during the further proceedings on this case, Justice Di Mango was aware that the People planned to re-present the dismissed charges. However, the Court's opinion did not contain authorization to do so, and there is nothing on the record before this Court containing any such authorization, without which further prosecution in Kings County of these dismissed charges would be barred by CPL § 210.20 (4). It appears the People relied on what may be termed an "implied authorization" to re-present the case.
Although this point has not been raised by the defense, the parties may wish to consider it if further proceedings on this indictment are contemplated.
On the date of the December 14, 2004 dismissal in Part 20, the prosecutor upon receiving the decision asked for leave to re-present the dismissed counts and stated she "would like to review the decision for any possible motion to reargue."
The People in their answer omit this request by the prosecutor and incorrectly assert that the People did not indicate their intention to re-present the case until the next adjourned date, February 8, 2005. See People's affirmation, Pars. 11-13. The Court did not respond to the People's request for permission to re-present, other than saying: "2/8," an adjournment of 55 days. Counsel for the co-defendant then stated, "2/8 trial," which was the final statement on the record that day.
The People's affirmation at Par. 12, also incorrectly asserts that the Court adjourned the case "for trial," when in fact, the Court without comment adjourned the case to "2/8" in response to the People's request for leave to re-present or reargue the dismissal. [*3]
The clerk in Part 20 had noted earlier during the proceedings that the defendant was present and "there is an affirmation from Mr. Pugliese," the defendant's attorney who was not present. Mr. Pugliese had submitted an affirmation stating he was on trial in another criminal case in New York County. The affirmation concluded, "I respectfully request that this case be adjourned until 20 day [sic] of January 2005 or any other date convenient to the Court."
Whether this affirmation justifies an exclusion of CPL § 30.30 time for the 55-day adjournment will be the controlling question on this motion.
On February 8, 2005 in Part 20, the Court (Mangano, J.) inquired if the People were going to re-present the case to the Grand Jury or if there would be a disposition by guilty plea based on the remaining counts. The Court was informed the People planned to re-present the case. The matter was adjourned to March 11, 2005.
Because the Judge in Part 20 on February 8, 2005 was not the Judge who dismissed the charges on December 14, 2004, it cannot be assumed that the Judge on February 8, 2005 either specifically granted the People off-the-record permission to re-present the dismissed charges or was even aware that judicial permission to re-present may not yet have been granted. Again, there was nothing on the record giving the People permission to re-present the dismissed Counts.
On March 11, 2005, the defendant's case was adjourned to April 15, 2005 for the People to re-present the case. Although Justice DiMango was again presiding in Part 20 on that date, there is nothing on the record to indicate she specifically authorized re-presentation, although she was aware of the People's intention to do so, thereby implying that the People were authorized to do so. On that date, however, this issue became academic as to the co-defendant who plead guilty to Robbery in the Third Degree, one of the remaining counts in indictment 5034/04.
On April 15, 2005, the case was again adjourned to May 20, 2005 for re-presentation.
On May 20, 2005 the case was adjourned to June 17, 2005 for the same reason.
Again, on June 17, 2005, the case was adjourned for the same reason to June 29, 2005 and transferred from Part 20 to Part 80.
On June 29, 2005, in Part 80 before me, the defendant was arraigned on superseding indictment 4322/05, and the People announced their readiness for trial on the new indictment. The case was adjourned to August 4, 2005 for submission of the Grand Jury minutes to the Court for inspection.
On August 4, 2005, the defendant submitted this motion to dismiss pursuant to CPL § 30.30.
The People have never explained why it took over six months from the date of the dismissal to re-present the case and file this indictment. Whether there were problems obtaining the presence of witnesses or whether the delay was due to administrative issues within the District Attorney's Office is unknown.
[*4]DISCUSSION
With the exception of the adjournment on December 14, 2004, the adjournments to be charged to the People are not in dispute, totaling 161 of the allowable 184 days.
The People are charged under CPL § 30.30 from the time the criminal action commenced with the filing of the felony complaint on August 5, 2004 (not August 4, 2004 as stated in the People's papers, which was the date of arrest) to the filing of the indictment and a statement of readiness on August 25, 2004: 20 days.
From August 25, 2004 through the defendant's arraignment on September 20, 2004, and the ensuing adjournments for discovery, judicial inspection of the Grand Jury minutes, and the Court's decision on the sufficiency of the Grand Jury minutes on December 14, 2004, the time is excludable as adjournments due to Court scheduling of the defendant's arraignment on the indictment, People v. Goss, 87 NY2d 792 (1996), and pre-trial motions. CPL § 30.30 (4) (a).
Similarly, the adjournments after the defendant's June 29, 2005 arraignment in Part 80 on the superseding indictment are also excludable due to pre-trial motions.
The five adjournments after December 14, 2004, from February 8, 2005 to June 29, 2005, were at the People's request in order to re-present the case to the Grand Jury and announce their readiness at the defendant's arraignment on the superseding indictment: 141 days.
When added to the 20 days charged prior to the first statement of readiness, the total charged time is 161 days. This total agrees with the time conceded by the People in their answer.
THE ADJOURNMENT OF DECEMBER 14, 2004
The People contend the 55-day adjournment on December 14, 2004 to February 8, 2005 should be excluded pursuant to CPL § 30.30 (4) (b), which, in pertinent part, excludes "the period of delay resulting from (emphasis added) a continuance granted by the court at the request of, or with the consent of the defendant or his counsel."
The People contend that the affirmation of engagement submitted by defense counsel falls under this statute and justifies excluding this 55-day adjournment.
Although defense counsel was not present and submitted an affirmation of engagement requesting adjournment to January 20, 2005 "or any other date convenient to the Court," it is clear from the record that no part of the 55-day adjournment to February 8, 2005 was either the result of the attorney's absence or with his consent, because the purpose of the adjournment was to allow the People time to re-present the dismissed charges to the Grand Jury. The sole cause of the adjournment was the People's stated intention either to re-present the dismissed charges to the Grand Jury or move to reargue the dismissal.
Had the People agreed on December 14, 2004 to accept the Court's decision and proceed to trial on the remaining lesser charges, the adjournment requested by the defense [*5]could have fallen within the People's argument that CPL § 30.30 (4) (b) excludes this time from being charged. However, because the People stated they wished to re-present the dismissed charges and not proceed to trial on the remaining charges, the attorney's affirmation of engagement was neither the reason for the adjournment nor can it be deemed to have been a consent to an adjournment to allow the People to re-present the dismissed charges.
The People have not argued that their re-presentation of the case was delayed by the attorney's absence. There is no argument that this case presents a situation where the People desired to offer the defendant a one-time opportunity to plead guilty under the remaining charges in lieu of re-presenting the more serious dismissed charges but could not do so because of the absence of defense counsel. No such ultimatum was given to counsel for the co-defendant who was present. If defense counsel had been present, there is no doubt the same adjournment would have resulted, because the People at that time did not wish to proceed with a charge of Robbery in the Third Degree as the top count.
Case law has found the CPL § 30.30 (4) (b) time exclusion to apply only where there is a factual nexus between the defense request or consent to an adjournment and the actual reason the adjournment was granted by the Court. This nexus is required by the statute's explicit language that an excludable adjournment must "result from" defense counsel's request or consent. The cases cited by the People all have this nexus. See, People v. Kopciowski, 68 NY2d 615 (1986) (CPL § 30.30 time excluded because adjournments were granted based on request by defense counsel); People v. Gerstel, 134 AD2d 281, (2nd Dept. 1987) (the People were wrongly charged with CPL § 30.30 time that was the result of defense counsel's request to extend the adjournment requested by the People so counsel could take a vacation).
The decision in People v. Galindo, 278 AD2d 243 (2nd Dept. 2000), cited by the People for the proposition that CPL § 30.30 time is not chargeable under any circumstances where defense counsel consents to an adjournment does not discuss the facts surrounding the adjournment in that case so it cannot be said that the excluded adjournment did not result from the defendant's consent. Nevertheless, the language in Galindo is not applicable to this case, because in this case the defense by filing an affirmation of engagement did not "consent" to the purpose of the adjournment requested by the People which was to re-present the dismissed charges to the Grand Jury. In fact, the decision in Galindo, cited People v. Liotta, 79 NY2d 841 (1992) where, at 843, the Court of Appeals stated, "consent to an adjournment must be clearly expressed (emphasis added) by the defendant or defense counsel to relieve the People of the responsibility for that portion of the delay."
Defense counsel's inability to be in court due to his engagement in another case and his submission of an affirmation of engagement is not the type of "clearly expressed" consent to an adjournment contemplated by Liotta where, as it turned out, the adjournment requested by the People and granted by the Court had nothing whatsoever to [*6]do with defense counsel not being there. In fact, pursuant to the Rules of the Chief Administrator of the Courts, § 125.1 (2), the Court was not required to grant automatically the adjournment requested by defense counsel, but, rather, first to take into account the circumstances set forth in the Rules. In this case, however, the People's announced intention to re-present the dismissed charges made it unnecessary for the Court to consider these circumstances in deciding whether to adjourn the case, because the adjournment was at the People's request. The record shows the Court did not consider the affirmation at all.
In People v. Jenkins, 286 AD2d 634 (1st Dept. 2001), CPL § 30.30 time was held properly excluded where, unlike this case, defense counsel's unavailability due to engagement on trial was the "predominant cause" of the adjournment, citing CPL § 30.30 (4) (f) which excludes that period of time where a defendant is "without counsel through no fault of the court." Although the People do not rely on CPL § 30.30 (4) (f) to justify excluding the 55-day adjournment, an exclusion of time under either CPL § 30.30 (4) (f) or CPL § 30.30 (4) (b) would not be justified, because the "predominant cause" of the lengthy adjournment was the People's request for time to re-present the dismissed charges, not the engagement on trial of defense counsel. See also, People v. Forbes, 7 AD3d 473 (1st Dept. 2004) (CPL § 30.30 time excluded where the adjournment request was "initiated by defendant"); People v. Forte, 4 AD3d 123, 124 (1st Dept. 2004) ( CPL § 30.30 time excluded where adjournment "resulted from" defense counsel's unavailability). Compare, People v. Mannino, 206 AD2d 157 (1st Dept. 2003) where CPL § 30.30 time was excluded pursuant to CPL § 30.30 (4) (f) ["without counsel"] even though the Court adjourned the case to allow the People time to re-present dismissed charges to the Grand Jury where defense counsel was absent without explanation and, a later case, People v. Reed, 19 AD3d 312, 317 (1st Dept. 2005) which held an exclusion pursuant to CPL § 30.30 (4) (f) is justified where the adjournment is "predominantly caused by defense counsel's failure to appear on a scheduled court date, irrespective of the People's lack of readiness."
When granting a continuance requested by defense counsel which would be excludable under CPL § 30.30 (4) (b) that statute expressly requires the Court to "grant such a continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges." In this case, the Court granted a 55-day adjournment to February 8, 2005, not the 36-day adjournment to January 20, 2005 requested by defense counsel. The adjourned date was set by the Court immediately following the People's request for leave to re-present the dismissed charges to the Grand Jury. In granting this adjournment, the Court was giving the People the time it believed would be needed to re-present the dismissed charges, not the shorter adjournment requested by defense counsel who did know about the dismissal when he submitted his affirmation. There appears to be no justification for the Court to have granted an adjournment almost three weeks longer than that requested by defense [*7]counsel and contrary to "the public interest in the prompt dispositions of criminal charges" if the Court's reason for the adjournment was not for the purpose of giving the People time to re-present the dismissed charges.
As of December 14, 2004, the People had been charged with only 20 days, giving them over five months of additional chargeable time from that date to re-present and announce they were ready for trial. To interpret CPL § 30.30 (4) (b) to give the People an extra 55 days based on an irrelevant circumstance would be contrary to the express limitations in CPL § 30.30 (4) (b).
The People's argument that CPL § 30.30 (4) (b) should be applied using a bright-line rule excluding adjournments in all cases when an affirmation of engagement is filed, ignores the express wording of the statute, case law interpreting the statute, and the underlying policy expressed in the statute to limit delays in criminal cases.
As noted, CPL § 30.30 (4) (b), as a prerequisite, excludes the period of delay "resulting from" adjournments granted at the request of or with the consent of the defendant. These words must be given effect in interpreting whether the affirmation of engagement justifies excluding the 55-day adjournment. McKinney's Statutes, § 231.
In this case, the adjournment simply did not "result from" the defendant's request or consent. Therefore, this 55-day adjournment, granted solely because the People wished to re-present the dismissed charges, does not qualify for exclusion under CPL § 30.30 (4) (b). The time is charged to the People, and when added to the 161 days of time charged for other adjournments brings the total of charged time to 216 days, over a month in excess of the 184 day limit.
Accordingly, the motion is granted and the indictment is dismissed.
SO ORDERED
JOEL M GOLDBERG
JUDGE
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