People v McEwan

[*1] People v McEwan 2006 NY Slip Op 52454(U) [14 Misc 3d 1208(A)] Decided on December 26, 2006 Criminal Court Of The City Of New York, Kings County Nadelson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 26, 2006
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Latoya McEwan, Defendant.



2006KN031851



For the People: Danit Almog

For the Defendant: Paul Lieberman

Eileen N. Nadelson, J.

Motion to Dismiss Pursuant to CPL 30.30

Defendant presents two issues for the court's consideration:

1. Whether the superseding information filed by the People is facially insufficient; and

2. Whether the mailing of the superseding information to Defendant on the 90th day after

arraignment, which only reached Defendant on the 92d day, violates the provisions

of CPL 30.30.

The court finds Defendant's first argument moot. According to the minutes of the court proceeding on August 31, 2006, provided by the People in their response to the motion, the Hon. Kenneth Holder declared in open court that the complaint was converted by the superseding information filed by the People (line 12).

In analyzing Defendant's motion, the court perceives that the motion fails to provide either a copy of the superseding information or any legal support for her assertions. CPL 255.20(2) states that:

All pre-trial motions, with supporting affidavits, affirmations, exhibits

and memoranda of law, whenever practicable, shall be included with the

same set of motion papers....

Where moving papers only contain conclusory allegations, such motions have been deemed insufficient to raise any factual issues. People v. Jeffreys, 284 AD2d 550, 717 NYS2d 626 (2d Dept. 2001). Further, motions have been considered insufficient when a movant fails to provide the court with an adequate record or legal memorandum in his or her papers, People v. Rincon, 18 AD3d 580, 794 NYS2d 656 (2d Dept. 2005), because the court cannot be expected to [*2]divinate the reasons why the motion should be granted. People v. George Motchen Detention Ctr., 2001 NY Slip Op. 40317(U) (Sup. Ct. Bronx County 2001). At the very least moving papers should include exhibits and legal support for the request. People v. Madsen, 2006 NY Slip Op. 50419(U) (Criminal Court Kings County 2006), see generally, People v. Brisko, 219 AD2d 493, 631 NYS2d 516 (1st Dept. 1995).

The court also finds Defendant's second argument without merit. The speedy trial requirements of CPL 30.30 are met when the People either file a Statement of Readiness or declare readiness in open court. Defendant does not dispute that the People's Statement of Readiness was filed with the court on the 86th day following arraignment, nor does she dispute that the postmark on the copy mailed to Defense counsel is the 90th day. Defendant's only argument is that, because the Statement of Readiness did not actually reach Defendant until the 92d day the provisions of CPL 30.30 have not been met.

In People v. Cenat, 176 Misc 2d 45, 671 NYS2d 582, the court held that "it is the filing of the statement, not service, that is critical, and that all that is required is prompt' notice to defense counsel." In Cenat, the Statement of Readiness was filed on the 86th day and the Statement was mailed to Defendant on the 89th day but was never received because of an addressing error. On the 91st day the defendant received actual notice in open court. The court indicated that a five-day lapse between filing and actual notice is sufficiently prompt to meet statutory requirements.

In the case at bar, the Statement of Readiness was filed with the court on the 86th day, exactly as in the Cenat, case, supra , and Defendant received actual notice six days later, which this court considers to be prompt notification. Therefore, Defendant's motion to dismiss pursuant to CPL 30.30 is denied.

This constitutes the decision and the order of the court.

Dated: December 26, 2006

__________________________

Eileen N. Nadelson, J.C.C.