People v Yeah

[*1] People v Yeah 2007 NY Slip Op 51151(U) [15 Misc 3d 1145(A)] Decided on May 25, 2007 Criminal Court Of The City Of New York, New York County Douglas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 25, 2007
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Stephen Yeah, Defendant.



2006NY065417

Dena E. Douglas, J.

Defendant, Stephen Yeah, is charged with one count of criminal possession of a weapon in the fourth degree pursuant to PL § 265.01(1). Criminal possession of a weapon in the fourth degree is a class A misdemeanor; the People thus have 90 days in which to prepare for trial.

Defendant was arraigned on September 27, 2006. On April 17, 2007 defendant filed a motion pursuant to CPL § 30.30 seeking dismissal of all charges based upon the People's failure to answer ready for trial within the applicable 90-day period. Defendant seeks to charge the People with 91 days of includable delay.

The court has reviewed the defendant's moving papers, the People's response, relevant statutes and case law, and for the reasons discussed hereafter, denies the defendant's motion to dismiss the charges pursuant to CPL § 30.30.

At arraignment on September 27, 2006, the matter was adjourned for the People to file supporting depositions. The depositions were filed and served on November 15, 2006. The parties agree that the 49 days between September 27th and November 15th are includable delay, chargeable to the People.

On November 15th, a motion schedule was set and the matter was adjourned to January 31, 2007 for response and decision. The parties agree that this time is excludable pursuant to CPL § 30.30(4)(a). People filed and served their response on January 31, 2007. The court ordered a Dunaway/Huntley/Mapp hearing and the matter was adjourned to March 28, 2007 for hearing and trial.

On March 28th the People answered ready for trial but defendant requested an adjournment and on the adjourn date of April 17,2007 filed the instant motion to dismiss pursuant to CPL § 30.30. It is undisputed that none of the delay since March 28th is chargeable to the People.

DISCUSSION

The parties dispute the allocation of the 56 day period between January 31st and March [*2]28th. The People find the entire time excludable, pursuant to People v Douglas, 156 AD2d 173(1st Dept, 1989) and People v Green, 90 AD2d 705 (1st Dept, 1982). Defendant, citing Green and several other First Department decisions, argues that a reasonable period of time for People to prepare for hearings and trial is fourteen (14) days, and seeks to charge the People with 42 days, bringing the People's days of includable delay to 91.

Defendant relies heavily on People v Simons, 14 Misc 3d 1239A(Crim Ct, NY Co, March 8, 2007) which recently pronounced that in a straightforward misdemeanor case with no complications and no photographs, recordings, or scientific or medical reports, 14 days is a reasonable period to People prepare for trial after the Court has made decisions on pre-trial motions. Simons cites People v Chavis in noting that the People may avoid being charged with pre-readiness delay occasioned by court scheduling by simply filing a certificate of readiness. (91 NY2d 500, 506 [1998])

Subsequent to the publication of Simons, we have seen the publication of People v Taylor, 2007 NY Slip Op 27191 (Crim Ct, NY Co, May 10, 2007) holding that when suppression motions result in scheduled suppression hearings, the motions have not been granted but are still before the court, thus all of the time until the hearings occur and result in the granting or denial of the suppression motion, is entirely excludable under CPL § 30.30 (1)(a) as motion practice.

The case at hand is distinguishable from both Simons and Taylor, however, in that the People had never answered ready in Simons, not even at the time of the filing of defendant's Section 30.30 motion, and in Taylor, the People had answered not ready on the initial adjournment date for hearing and trial. Here, on the date of initial adjournment for hearing and trial the People made a statement of readiness on the record.

When the People are not ready, the burden of establishing excludable delay falls to them, but when People have stated ready on the record, establishing includable delay becomes the burden of defendant. While it is fitting that the People should not benefit from court congestion when they make a scheduled appearance in court and give no explanation for their unreadiness, neither should they be punished for court congestion when they have answered ready at the first opportunity. Defendant here seeks to convert the shield regarding court congestion into a sword.

This court finds that to expect the People to file a COR before the initial adjourn date for hearing and trial in every case would not only create a great administrative burden but additionally gives the People no opportunity to explain any pre-readiness delay and removes all discretion from the court. Such would be untenable.

The People are charged with 49 days of delay.

Defendant's motion to dismiss the matter pursuant to CPL § 30.30 is denied.

The foregoing is the decision and order of this court.

Dated: May 25, 2007____________________

New York, NYDena E. Douglas

Judge of the Civil Court [*3]