People v Bosse

[*1] People v Bosse 2007 NY Slip Op 52115(U) [17 Misc 3d 1122(A)] Decided on October 29, 2007 Criminal Court Of The City Of New York, Kings County Cyrulnik, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2007
Criminal Court of the City of New York, Kings County

People of the State of New York

against

Jacqueson Bosse, Defendant.



2006KN036534



The People were represented by:

Assistant District Attorney Melody Huang

The defendant was represented by:

Nanette R. Kripke, Esq.

The Legal Aid Society

Miriam Cyrulnik, J.

The defendant was initially charged in two separate dockets which were ultimately consolidated for trial.

On May 7, 2007, defense counsel made an oral motion to dismiss pursuant to CPL 30.30. The court granted the defendant's motion dismissing the charges and stayed sealing for thirty days. On June 5, 2007, the People filed a motion to reargue the CPL 30.30 dismissal, which is presently pending before the court.[FN1]

"A motion to reargue is addressed to the discretion of the court and should be granted only if a relevant fact or principle of law has been overlooked or misapplied." People v. Raglin, 175 Misc 2d 1009 (Crim Ct, Queens County 1998). The motion to reargue is granted and upon reconsideration, the court withdraws its original decision and issues the following decision and order in its stead.

CPL 30.30

Once the defendant alleges that the People have exceeded their statutory speedy trial time, the People must demonstrate that the disputed adjournments are excludable by reference to a statutory provision. People v. Berkowitz, 50 NY2d 333 (1980). The prosecution also bears the burden of clarifying, on the record, the basis for an adjournment so that the motion court can [*2]determine to whom the adjournment should be charged. People v. Cortes, 80 NY2d 201, 215-216 (1992); People v. Liotta, 79 NY2d 841 (1992); People v. Berkowitz, supra.

Notwithstanding the consolidation ordered for trial, the court will analyze the People's readiness for trial separately as to each of the dockets with the date of the filing of the accusatory instrument as the beginning of the period. See, People v. Raglin, 175 Misc 2d 1003 (Crim Ct, Queens County 1998), mod on other grounds upon rearg, 175 Misc 2d 1009, supra.

1. Docket #2006KN036534

May 27, 2006 - June 15, 2006

On May 27, 2006, the defendant was arraigned on docket #2006KN036534, charging him in a felony complaint with, inter alia, Assault in the Third Degree and Criminal Contempt in the First Degree. The case was adjourned to June 15, 2006 for Grand Jury action.

June 15, 2006 - July 26, 2006

On June 15, 2006, the case was marked final against the People and adjourned to July 26, 2006 for Grand Jury action.

June 28, 2006 - July 26, 2006

On June 28, 2006, the matter was advanced to join defendant's new case under Docket #2006KN042323. The instant docket was reduced by the dismissal of the felony charges, i.e., Aggravated Criminal Contempt and Criminal Contempt in the First Degree[FN2], leaving the top count a class "A" misdemeanor. This commenced the running of the People's 90 day speedy trial period.[FN3] See, CPL §30.30(5)(c); CPL §30.30(1)(b); People v. Sommersell, 166 Misc 2d 774 (App Term, 2d Dept 1995), lv denied, 88 NY2d 886 (1996). The People made an oral application for consolidation of the first and second cases. The court set a motion schedule and the cases were adjourned to July 26, 2006 for decision. This adjournment is excludable as motion practice. CPL §30.30(4)(a); People v. Reed, 19 AD3d 312 (1st Dept. 2005), lv denied, 5 NY3d 832 (2005).

July 26, 2006 - September 7, 2006

On July 26, 2006, in light of the defendant's failure to respond to the consolidation motion, the court granted the requested relief on default. The consolidated case was adjourned to September 7, 2006 for discovery by stipulation (DBS) with respect to the charges contained in docket #2006KN036534. This adjournment is excludable. CPL §30.30(4)(a); People v. Popat, 15 Misc 3d 1136(A)(Crim Ct, Kings County 2007); People v. Khachiyan, 194 Misc 2d 161, 166 (Crim Ct, Kings County 2002).

[*3]

September 7, 2006 - October 11, 2006

On September 7, 2006, the People filed and served DBS. They then announced ready for trial, tolling the running of the speedy trial clock with respect to the charges originating in docket #2006KN036534. See, People v. Kendzia, 64 NY2d 331 (1985). The remainder of the adjournments in connection with those charges will be reviewed in a post-readiness context. See, People v. Anderson, 66 NY2d 529 (1985). The case was then adjourned to October 11, 2007 for trial. This adjournment is excludable as the People are entitled to a reasonable period of time to prepare for trial. See, People v. Reed, supra at 314-315; People v. Green, 90 AD2d 705 (1st Dept. 1982), lv denied, 58 NY2d 784 (1982).

October 11, 2006 - November 14, 2006

On October 11, 2006, the People were not ready for trial. They requested a two week adjournment and the court adjourned the case to November 14, 2006 for trial. The People are chargeable with 14 days of delay. People v. Williams, 32 AD3d 403, 405 (2d Dept 2006), lv denied, 7 NY3d 905 (2006) (post readiness, People are only charged with the adjournment requested); see also, People ex rel Sykes v. Mitchell, 184 AD2d 466 (1st Dept. 1992); People v. Popat, supra.

November 14, 2006 - December 12, 2006

On November 14, 2006, the People were again not ready for trial. They requested another two week adjournment and the court adjourned the matter to December 12, 2006 for trial. The People are chargeable with 14 days of delay. People v. Williams, supra; People ex rel Sykes v. Mitchell, supra; People v. Popat, supra.

December 12, 2006 - January 17, 2007

On December 12, 2006, the People were again not ready for trial. They requested a two week adjournment and the case was adjourned to January 17, 2007 for trial. The People are chargeable with 14 days of delay. People v. Williams, supra; People ex rel Sykes v. Mitchell, supra; People v. Popat, supra.

January 17, 2006 - March 19, 2007

On January 17, 2007, the People were again not ready. The court directed the People to file a Statement of Readiness off-calendar and adjourned the matter to March 19, 2007 for trial or 30.30 dismissal. In the interim, on January 26, 2007, the People filed and served a Statement of Readiness off-calendar on the court and defense counsel. This stopped the time running against the People. See, People v. Stirrup, 91 NY2d 434 (1998); People v. Chavis, 91 NY2d 500, 506 (1998); People v. Kendzia, supra.

March 19, 2007 - April 19, 2007

On March 19, 2007, however, the People were not ready for trial. The court action sheet indicates that the trial assistant was in Trial Part 4. According to her motion papers, the trial assistant explained that she was in that part because she was on trial. The People requested a one week adjournment and the case was adjourned to April 19, 2007. The People are charged with seven days of delay. People v. Williams, supra; People ex rel Sykes v. Mitchell, supra; People v. Popat, supra.

April 19, 2007 - May 7, 2007

On April 19, 2007, the People were again not ready for trial. The trial assistant was in the Grand Jury. The People requested a one week adjournment and the case was adjourned to May 7, 2007. The People are chargeable with seven days of delay. People v. Williams, supra; People ex rel Sykes v. Mitchell, supra; People v. Popat, supra.

May 7, 2007[*4]

On May 7, 2007, the People had no file in court and were not ready for trial. The calendar assistant standing up on the case informed the court that she had a note from the trial assistant stating that the People would file a Statement of Readiness off-calendar. Defense counsel orally moved for dismissal pursuant to CPL 30.30.

After a bench conference and a quick review of the file, the court observed that since the case had entered a trial posture the People had not been ready on multiple occasions. At one point, the court noted, the People had requested an opportunity to file a Statement of Readiness off-calendar if they were able to do so. They did so on January 26, 2007 but had never been ready on any adjourn date before or after. The court concluded that the continued and repeated unreadiness by the People rendered their claim of readiness illusory, and dismissed the case.

On re-argument, the People dispute this conclusion. They assert that their January 26, 2006 Statement of Readiness was, in fact, valid when made. The People argue that once they announce ready, either in court or through an off-calendar submission, a subsequent period of unreadiness does not render the original Statement of Trial Readiness void. They assert that any subsequent change of heart by the complaining witness does not negate an announcement of readiness, although they do advise the court that they contacted their witness and confirmed her cooperation prior to serving the instant motion.[FN4]

Initially, the defendant challenges the People's first statement of trial readiness made on the day of conversion. He asserts that the People announce ready on the day of conversion in virtually all of their cases, and suggests that the repeated periods of unreadiness which followed raise questions about the veracity of that initial announcement. Thus, the defendant argues, this case should not have been put in a post-readiness posture, thereby allowing the People to be charged only with the time periods they requested.

With respect to the January 26, 2007, off-calendar statement of readiness, the defendant contends that "[w]here the People claim readiness in a written statement off calendar and are then not ready at the next court appearance, the off-calendar written readiness claim should be deemed to have no effect." Defendant's Affirmation and Memorandum of Law in Opposition, p. 25-27.

In order for the People to establish that they are ready for trial, the record must show that they clearly stated their readiness for trial on the record or filed and served a Certificate of Readiness off-calendar. The statement of readiness must be made in good faith. See, People v. Robinson, 171 AD2d 475 (1st Dept. 1991), lv denied, 78 NY2d 973 (1991). It must reflect an actual, present state of readiness, and not a prediction of future readiness. People v. Smith, 82 NY2d 676 (1993); People v. Kendzia, supra. A statement of readiness is presumed to be accurate and truthful. See, People v. Acosta, 249 AD2d 161 (1st Dept. 1998), lv denied, 92 NY2d 892 (1998).

"While subsequent requests for adjournments may indicate a lack of readiness at that time, they do not necessarily invalidate an earlier otherwise proper statement of readiness (citations omitted)." People v. Robinson, supra at 475. Likewise, the good faith of a certificate of readiness [*5]filed by the People after having answered not ready on certain occasions will not be negated by the People's unreadiness at the next calendar call. See, People v. Camillo, 279 AD2d 326 (1st Dept. 2001); People v. Vasquez, 277 AD2d 179 (1st Dept. 2000), lv denied, 96 NY2d 788 (2001)(same); People v. Douglas, 264 AD2d 671 (1st Dept. 1999), lv denied, 94 NY2d 862 (1999)(same).

The defendant's argument that the District Attorney's Office announces ready upon conversion in every case is an insufficient basis for this court to question whether the initial statement of readiness in this case was made in bad faith. The defendant concedes that the People announced ready at conversion. The record also reflects that the People subsequently announced their continued readiness when they turned over their discovery materials on September 7, 2006. The defendant has not raised any argument specific to this case in attacking the People's good faith basis for announcing ready. The defendant merely speculates that given the subsequent adjournments due to unreadiness, the People could not have been ready when they initially stated so. However, there is nothing in the record to suggest that the statement did not reflect an actual present state of readiness. Finally, the fact that the People subsequently requested repeated adjournments may be found to demonstrate a lack of readiness at that time, but it does not vitiate their initial announcement of readiness.

In support of the defendant's argument that the court correctly deemed the January 26, 2007, off-calendar statement of readiness illusory, he cites People v. Vivola, 13 Misc 3d 128(A) (App Term, 2nd & 11th Jud Dists 2006) and People v. Thomas, 6 Misc 3d 126(A) (App Term 2nd & 11th Jud Dists 2004).

In People v. Vivola, supra, the People were repeatedly unready for trial. In between their periods of unreadiness, the People filed and served three statements of readiness off-calendar in an attempt to limit their 30.30 exposure. Shortly after filing the last one, the People moved for an order directing the defendant to serve a voice exemplar regarding a tape recorded voicemail message allegedly left by him on the complainant's cellphone. That same day, the People informed the court that the tape had been in their possession since the day after the alleged incident occurred, a period of approximately one year. The trial court held that the statements of readiness were not illusory.In reversing the defendant's conviction and dismissing the accusatory instrument, the Appellate Term agreed that the People's statements of readiness were illusory. The Appellate Term apparently concluded that the People could not have been ready for trial at any of the three earlier instances because they were still in the process of obtaining evidence, as reflected in their request for a voice exemplar from the defendant, and the source of that evidence had been in their possession all along.

In People v. Thomas, supra, the People were not ready for trial on two successive dates, March 20, 2003 and May 6, 2003. On May 6, the court adjourned the case to August 4, a period of approximately 3 months. On May 7, the People filed and served a statement of readiness with a notice to advance the matter to May 21. On August 4, however, the People were once again not ready for trial. The trial court held that the statement of readiness was illusory.

In affirming the trial court, the Appellate Term agreed that the People's May 7, 2003 statement of readiness was illusory. The Appellate Term apparently questioned the sudden announcement of readiness just one day after requesting an adjournment. Moreover, rather than calendaring the case immediately, the People requested a date 14 days thereafter, leading to the conclusion that they would not really have been ready until May 21.

In this case, by contrast, there is nothing in the record which negates the good faith of the [*6]certificate of readiness, and neither Vivola nor Thomas compels a different result. Although the People were not ready to proceed to trial on the two adjourn dates following their filing a Statement of Readiness, the People had credible reasons why the trial assistant could not appear. On March 19th, she actually was engaged on trial, and on April 19th, she was in the Grand Jury. Neither of these reasons suggests bad faith. Finally, the fact that the People were not ready on the last court date, May 7th, and sought to file a statement of readiness off-calendar, does not vitiate their initial statement of readiness but merely shows a lack of readiness at a subsequent time.[FN5]

The January 26, 2006 statement of readiness tolled the running of the speedy trial clock. Therefore, the People are charged with nine days of delay, from January 17th to January 26th.

In sum, this court finds that on docket #2006KN036534 there are 65 days of chargeable speedy trial time. These charges are continued for trial.

2. Docket #2006KN042323

June 20, 2006 - June 23, 2006

On June 20, 2006, the defendant was arraigned on docket #2006KN042323, charging him in a felony complaint with, inter alia, Criminal Contempt in the First Degree (3 counts) and Menacing in the Third Degree. The case was adjourned to June 23, 2006 for Grand Jury action.

June 23, 2006 - June 28, 2006

On June 23, 2006, the People reduced the charges to misdemeanor level by filing a Superseding Information along with the supporting deposition of Nancy De Brosse. This commenced the running of the People's 90 day speedy trial period.[FN6] See, CPL §30.30(5)(c); CPL §30.30(1)(b); People v. Sommersell, supra. The matter was adjourned to June 28, 2006 for open file discovery. This adjournment is excludable. CPL §30.30 (4)(a); People v. Khachiyan, supra.

The defendant now asserts for the first time that the Superseding Information is defective in that the supporting deposition is dated May 21, 2006, prior to the events alleged in either of the two dockets before the court.

The People counter that since this is the first time the defendant is questioning the reliability of the supporting deposition, after the court found the complaint converted to an information and the People announced ready, they should not be charged retroactively. They argue that should the court accept defendant's argument, they should be given a reasonable period of time to file and serve any documents necessary to cure the defect. They also assert that the supporting deposition is clearly misdated, given that the defendant was arrested on June 19, 2006 and a complaint was not made until he was apprehended. Further, the fact that the supporting deposition has a docket number [*7]on it shows that it was signed on a date after the Criminal Court assigned a docket number and the defendant was arraigned.[FN7]

The court agrees, and finds that the complainant clearly misdated the supporting deposition. The fact that the document contains the docket number for this case demonstrates that it was signed after the Criminal Court Arraignment Clerk's Office generated one (which, by necessity, would have occurred prior to the defendant's arraignment on June 20, 2006).

A "supporting deposition is a written instrument accompanying or filed in connection with an information ... a misdemeanor complainant ... subscribed and verified ... and containing factual allegations of an evidentiary character, based either upon personal knowledge or upon information and belief, which supplement those of the accusatory instrument and support or tend to support the charge or charges contained therein." CPL §100.20.

A supporting deposition is considered verified if it contains a form notice that false statements made therein are punishable as a Class A misdemeanor pursuant to section 210.45 of the Penal Law and is subscribed by the deponent of the instrument. CPL §100.30(1)(d).

All that the law requires is that the supporting deposition be signed and verified. Here, the complainant attested to the veracity of her statements and verified the supporting deposition by signing the document which contained the form notice: "False statements made herein are punishable as a Class "A" misdemeanor pursuant to Section 210.45 of the Penal Law."

Accordingly, this court finds the error in the date to be a ministerial defect which is de minimis. The fact that the complainant placed the incorrect date on the supporting deposition is therefore an issue for trial.

June 28, 2006 - July 26, 2006

On June 28, 2006, the People filed and served open file discovery on docket #2006KN042323 and announced ready for trial. This tolled the speedy trial clock. See, People v. Kendzia, supra. The remainder of the adjournments in this docket will be reviewed in a post-readiness context. See, People v. Anderson, supra.

July 26, 2006 - September 7, 2006

On July 26, 2006, in light of the defendant's failure to respond to the People's motion to consolidate, the court granted the motion on default. The consolidated case was adjourned to September 7, 2006 for discovery by stipulation (DBS) with respect to the charges contained in docket #2006KN036534. This adjournment is excludable. CPL §30.30(4)(a); People v. Khachiyan, supra; People v. Popat, supra.

September 7, 2006 - October 11, 2006

On September 7, 2006, the People filed and served discovery on docket #2006KN036534. They then announced ready for trial; this tolled running of the speedy trial clock with respect to the charges contained in the former docket #2006KN042323. See, People v. Kendzia, supra. The [*8]remainder of the adjournments in connection with those charges will be reviewed in a post-readiness context. See, People v. Anderson, supra. The case was then adjourned to October 11, 2007 for trial. This adjournment is excludable as the People are entitled to a reasonable period of time to prepare for trial. See, People v. Reed, supra; People v. Green, supra.

October 11, 2006 - November 14, 2006

On October 11, 2006, the People were not ready for trial. They requested a two week adjournment and the court adjourned the case to November 14, 2006 for trial. The People are chargeable with 14 days of delay. People v. Williams, supra; People ex rel Sykes v. Mitchell, supra; People v. Popat, supra.

November 14, 2006 - December 12, 2006

On November 14, 2006, the People were again not ready for trial. They requested another two week adjournment and the court adjourned the case to December 12, 2006. The People are chargeable with 14 days of delay. People v. Williams, supra; People ex rel Sykes v. Mitchell, supra; People v. Popat, supra.

December 12, 2006 - January 17, 2007

On December 12, 2006, the People were once again not ready for trial. They requested a two week adjournment and the case was adjourned to January 17, 2007. The People are chargeable with 14 days of delay. People v. Williams, supra; People ex rel Sykes v. Mitchell, supra; People v. Popat, supra.

January 17, 2007 - March 19, 2007

On January 17, 2007, the People were again not ready and the court directed the People to file a Statement of Trial Readiness off-calendar. The case was adjourned to March 19, 2007 for trial or 30.30 dismissal.

In the interim, on January 26, 2007, the People filed and served a Statement of Trial Readiness on the court and defense counsel. As previously discussed, the good faith of the Statement of Readiness was not negated by subsequent periods of unreadiness. See, People v. Camillo, supra; People v. Vasquez, supra; People v. Douglas, supra. Thus, the statement tolled the running of the speedy trial clock. See, People v. Stirrup, supra; People v. Kendzia, supra. The People are charged with nine days of delay.

March 19, 2007 - April 19, 2007

On March 19, 2007, the People were not ready for trial. The court action sheet indicates that the trial assistant was in Trial Part 4. According to her motion papers, the trial assistant explained that she was in that part because she was on trial. The People requested a one week adjournment and the case was adjourned to April 19, 2007. The People are chargeable with seven days of delay. People v. Williams, supra; People ex rel Sykes v. Mitchell, supra; People v. Popat, supra.

April 19, 2007 - May 7, 2006

On April 19, 2007, the People were again not ready for trial, as the trial assistant was in the Grand Jury. The People requested a one week adjournment and the case was adjourned to May 7, 2007. The People are chargeable with seven days of delay. People v. Williams, supra; People ex rel Sykes v. Mitchell, supra; People v. Popat, supra.

As previously noted, on May 7, 2007, the case was dismissed.

This court finds that with respect to he charges contained in what had been docket #2006KN042323, there are 65 days of chargeable speedy trial time. These charges are continued for trial. [*9]

Accordingly, the court's earlier oral decision is hereby rescinded. The defendant's motion to dismiss pursuant to CPL §30.30 is denied and the consolidated docket is continued for trial.

This constitutes the Decision and Order of the Court.

Dated: October 29, 2007

Brooklyn, New York

____________________________

Miriam Cyrulnik

Judge of the Criminal Court Footnotes

Footnote 1: Defense counsel requested, and received, numerous extensions of time to file her response papers. She also requested an adjournment on one occasion because she had not advised her client to appear and several adjournments so she could appear personally on the date the court rendered its decision.

Footnote 2: On the People's motion, the court also dismissed the charge of Criminal Contempt in the Second Degree. The People served and filed the requisite supporting deposition and the accusatory instrument was deemed an information.

Footnote 3: The speedy trial statute gives the People either 90 days from the filing of the new instrument or six months from the filing of the original felony complaint, whichever is shorter. In the instant case, 90 days is the shorter period.

Footnote 4: The People urge the court to "keep in mind" the often ambivalent feelings of complainants in domestic violence cases, who frequently "...change their minds as to whether to go forward with a case or not." People's Affirmation at p. 6. The court is fully aware of the complexity of these issues. However, there are no special distinctions in the statute or case law for domestic violence cases.

Footnote 5: This court notes that the People's failure to have their file in court, a recurring issue, may have contributed to the problem, since the assistant present in court had only the briefest of notes and could not respond meaningfully to the issues raised.

Footnote 6: The speedy trial statute gives the People either 90 days from the filing of the new instrument or six months from the filing of the original felony complaint, whichever is shorter. In the instant case, 90 days is the shorter period.

Footnote 7: The People note that on June 21, 2006, ADA Syed Qamer prepared and signed a Superseding Information. They suggest that ADA Qamer "had to have" spoken with the complainant in order for her to be the deponent on the Superseding Information, and ask the court to infer that the complainant "must have" read the new accusatory instrument on or after June 21, 2006. People's Reply Affirmation at p. 5. Absent any affirmation from ADA Qamer, however, that assertion is purely speculative.