People v Henningsen

[*1] People v Henningsen 2008 NY Slip Op 50421(U) [18 Misc 3d 1143(A)] Decided on March 6, 2008 Criminal Court Of The City Of New York, New York County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2008
Criminal Court of the City of New York, New York County

The People of the State of New York

against

John Henningsen, Defendant.



2007NY027255

Elisa S. Koenderman, J.

The defendant, John Henningsen, is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree under Penal Law 220.03. The defendant now seeks dismissal on speedy trial grounds under CPL 30.30. Defendant argues that more than one hundred and sixty-four days are chargeable to the People since defendant's arraignment, whereas the People contend that only twenty-seven days chargeable to the People have elapsed thus far. This substantial disparity springs from defendant's detention in Connecticut (where he faced charges alleging violation of probation in that state) which commenced after he was arraigned in New York. While defendant was detained in Connecticut, he was not present at a series of successive court dates in New York.

When a defendant is charged with a misdemeanor punishable by a sentence of more than three months' incarceration, the People must be ready for trial within ninety days of commencement of the criminal action (see CPL 30.30[1][b]), less any excludable periods (see CPL 30.30[4]; People v Cortes, 80 NY2d 201 [1992]). The requirements of CPL 30.30 address the issue of prosecutorial readiness for trial (see People v Anderson, 66 NY2d 52 [1985]) and require the prosecution to be ready for trial within a reasonable time in all but the most unusual of cases (see People v Berkowitz, 50 NY2d 333 [1980]). The prosecution's communication of readiness must include both a statement of readiness by the prosecutor (either in open court, transcribed by a stenographer, or recorded by a clerk, or a written notice filed and served by the prosecution) and actual readiness to proceed on the part of the prosecution (see People v Kendzia, 64 NY2d 331 [1985]).

Whether the People have satisfied this obligation is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional delays that transpire after readiness has been declared, when such delays are attributable to the People and are ineligible for any [*2]exclusions under the statute (see People v Cortes, 80 NY2d 201, 208). In computing the time within which the People must be ready for trial, the "period of delay resulting from detention of the defendant in another jurisdiction provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial" must be excluded. CPL 30.30 (4)(e).

Upon review of the submissions of the parties [FN1], the official court file and the transcribed stenographic minutes of all prior proceedings, the court makes the following findings. Defendant was arraigned on April 7, 2007, at which time bail was set and the case adjourned to April 12, 2007 for grand jury action. On April 12, 2007, the People did not have a laboratory report, there was no grand jury action, notice pursuant to CPL 170.20 was stayed and the defendant was released pursuant to CPL 170.70. The parties do not dispute that this 5-day period is chargeable to the People.

As revealed by their own submissions, the People advised the Connecticut probation authorities on April 12, 2007 about defendant's New York arrest, which was followed by a Connecticut arrest warrant issued on April 13, 2007. On May 4, 2007, defendant was arrested and detained in Connecticut. The parties do not dispute that the 22-day period between April 13 and May 4 is chargeable to the People.

On May 16, 2007, the New York County District Attorney's Office communicated with Connecticut authorities, evidence of which communication demonstrates that the People were aware that defendant was being detained in another jurisdiction from that date forward. The People filed a laboratory report and corroborating affidavit off-calendar on June 20, 2007, whereby the complaint was converted to an information, but they did not file a certificate of readiness. At the next appearance on June 28, 2007, the People withdrew notice pursuant to CPL 170.20, a motion schedule was set on consent [FN2], and the People were directed to produce defendant.

Defense motions were not filed by the next date, defendant was still detained in Connecticut and was not before the court, the matter was again adjourned on consent for defendant's motions, and the People were again directed to produce defendant. On August 14, 2007, suppression hearings were granted, at which time the People stated that defendant would be sentenced in Connecticut on August 20, 2007, and stated further that the People would have a detainer in place, without specifying at what point in the future they would actually do so. The People were again directed to produce defendant and the matter was adjourned to September 18, 2007 for hearings. By this point, the People had still not announced their readiness to proceed to trial. [*3]

On September 12, 2007, defendant was sentenced in Connecticut. On September 18, 2007, defendant was not present in court, and a bench warrant for defendant's arrest was issued after the People requested a warrant for the first time thus far in this case. On September 19, 2007, the district attorney's office sent a letter to Connecticut authorities, which indicated that the letter was offered as a formal detainer to be lodged against the defendant for the purposes of his return to New York. Subsequently, a series of letters, forms and various other documents were exchanged between the relevant authorities in New York and Connecticut in furtherance of his appearance in New York. The warrant issued on September 18, 2007 was vacated on December 28, 2007, when defendant was finally returned to New York and the case was adjourned to January 2, 2008 for hearings and trial. On January 2, 2008, the People stated that they were not ready and the matter was adjourned for hearings and trial to January 7, 2007. On January 3, 2008, defendant filed the present motion.

On a motion made pursuant to CPL 30.30, a defendant meets the burden of going forward by showing that a delay greater than the allowable statutory limit has occurred since commencement of the action; once this is shown, the burden shifts to the People, who must show that the time periods in question should not be charged against them (see People v Berkowitz, 50 NY2d 333 [1980]). The defendant argues that the People failed to be diligent and make reasonable efforts to secure defendant's appearance as required by CPL 30.30 (4)(e), and that as a result the speedy-trial clock continued to run uninterrupted from arraignment onward, notwithstanding defendant's own motion practice,[FN3] resulting in more than 90 days chargeable to the People. Essentially, defendant seems to suggest that the prosecution's obligation to be diligent and make reasonable efforts attached immediately upon defendant's arrest in Connecticut, and that their obligation is of such heightened importance that even a well-settled exclusion to chargeable time, defendant's motion practice, is rendered inapplicable, and that therefore, the speedy-trial clock ran continuously for more than ninety days.

In response, the People argue, in sum, that securing the defendant's presence in New York was an impossibility until after he was sentenced in Connecticut, because the provisions of the Interstate Agreement on Detainers, CPL 580.20, will apply only to a person who is "serving a term of imprisonment" in another state (see People v Reilly, 136 AD2d 355 [2d Dept 1988]. They further argue that they therefore had no duty to obtain a warrant for defendant nor to lodge a detainer in Connecticut until he was sentenced in Connecticut. In essence, the People assert that they had no duty to act whatsoever before defendant was sentenced in Connecticut, because even if they had obtained a warrant prior to that date and promptly filed it at as a detainer with the Connecticut authorities, it is their belief that Connecticut would not have returned defendant to New York until after defendant was sentenced. Since the defendant was not actually sentenced in Connecticut until September 18, 2007, it is the People's contention that they did not have a duty of due diligence until that time, since any action [*4]they could have taken before defendant was sentenced and serving a term of imprisonment would have been futile, in that it would not have secured defendant's presence any earlier.

The court's analysis of the disputed time periods is as follows.

April 7, 2007 to April 12, 2007 5 Days

As mentioned earlier, the parties do not dispute, and the court agrees, that this period is chargeable to the People, as they had not yet converted the complaint.

April 12, 2007 to June 28, 2007 77 Days

Although the People filed the documents necessary for the conversion of the complaint to an information on June 20, 2007, they did not file a certificate of readiness or otherwise announce their readiness. Conversion to an information is a necessary prerequisite for the People to be legally ready to proceed; however, mere conversion of a complaint is not sufficient to communicate readiness, nor is it a substitute for a declaration of readiness (see People v Kendzia, 64 NY2d 331 [1985]). Since the People had not yet declared that they were ready for trial, the speedy trial clock continued to run. A period of delay is excludable when a defendant is absent or unavailable (see CPL 30.30[4][c][I]); however, no delay resulted from defendant's incarceration at this point, because no adjournments resulted due to his detention (see People v Colon, 110 Misc 2d 917 [Crim Ct NY Cnty 1981]). In essence, during this time period, defendant could have been anywhere, and nothing he did caused any period of delay until the next court appearance. Thus, these 77 days are chargeable to the People.

In any event, the People are unable to avail themselves of the exclusion of time afforded to the prosecution when a defendant is incarcerated in another jurisdiction, because the People failed to exercise due diligence to secure defendant's appearance before the court. It is settled that a defendant has an absolute right to be present at all material stages of his trial. "A defendant's presence at trial is required not only by the Confrontation and Due Process Clauses of the Federal and State Constitutions [citations omitted] but also by CPL 260.20 [ ]. The statutory right [ ] extends to the impaneling of a jury, the introduction of evidence, the summations of counsel and the court's charge to the jury' [citations omitted])" (People v Dokes, 79 NY2d 656, 659 [1992]). Furthermore, a defendant's right to be present cannot be compromised because only a misdemeanor is charged (see People v Trendell, 61 NY2d 728 [1984]). It is also without question that "It is the state which initiates [a criminal] action and it is the state which must see that the defendant is arraigned. It is likewise the state which has the duty of seeing that the defendant is speedily brought to trial" (People v Prosser, 309 NY 353 [1955]).

In light of the above, the People have an affirmative duty to be diligent and make reasonable efforts to secure a defendant's presence which attaches upon their knowledge of a defendant's incarceration, whether that knowledge is actual (see People v Winfrey, 20 NY2d 138 [1967]; see also People v Wallace, 26 NY2d 371 [1970]) or imputed (see People v McLaurin, 38 NY2d 123 [1975]; People v Davis, 184 AD2d 575 [2d Dept 1992]; People v Lesley, 232 AD2d 259 [1st Dept 1996]; People v Delacruz, 184 Misc 2d 653 [Sup Ct NY Cnty 2000]).

In this case, the People have submitted a document clearly showing contact between the district attorney's office and probation authorities in Connecticut on May 16, [*5]2007, whereby the People were aware that defendant was being held there pending resolution of violation of probation charges. This court finds that the People's duty to make reasonable and diligent efforts to secure the presence of defendant attached at the time that they became aware of defendant's detention in Connecticut (see People v Mapp, 308 AD2d 463 [2d Dept 2003][defendant is considered unavailable under CPL 30.30(4)(c)(1) once prosecution has knowledge of his whereabouts, and delay excluded only if People demonstrate that due diligence was exercised in attempting to secure defendant's presence for trial]). Since the People's own submissions establish that the district attorney's office was aware on May 16, 2007 that defendant was being detained in Connecticut, their duty to act came into being at that time.

The People's argument that they did not have to make diligent, reasonable efforts until defendant was sentenced in Connecticut because Connecticut would not have returned defendant to New York before then is unpersuasive. The case law is clear regarding the duty of the prosecution to use due diligence in securing the presence of defendants when their location is known (see People v Anderson, 66 NY2d 529 [1985]), and the People do not offer any authority to the contrary. In this case, the People failed to exercise due diligence in securing defendant's appearance when they had a duty to do so, inasmuch as "[i]t is settled that delay occasioned by defendant's incarceration under the jurisdiction of...another State is not justified when prosecutorial authorities have knowledge of the defendant's detention and make no diligent efforts to obtain his presence for trial. It is thus incumbent upon the People to show that the defendant has not been brought to trial for good cause'" (People v McLaurin, 38 NY2d 123 [1975]). The provisions of CPL 30.30 (4)(e) allow for the time defendant is incarcerated in another jurisdiction to be excluded only if the People have been diligent and made reasonable efforts to secure defendant's presence, and this duty requires much more than the People have demonstrated in this case.

There is a paucity of specific guidance as to what particular actions will satisfy the People's due diligence requirement (see People v Pierce, 2007 NY Slip Op 1952, 38 AD2d 262 [1st Dept 2007][due diligence found but not defined or described];see also People v Williams, 220 AD2d 787 [2d Dept 1995] [due diligence found but not defined or described]; see also People v Cipriano, 221 AD2d 461 [2d Dept 1995] [due diligence found but not described]). Indeed, specific statements about what constitutes due diligence are limited, at best (see People v Gonzalez, 235 AD2d 366 [1st Dept 1997] [People's repeated requests for production of defendant from Federal custody, followed by frequent calls to Federal prosecutor to obtain updates, even after being unequivocally advised that defendant would not be released prior to Federal trial constitutes due diligence]; see also People v Johnson, 115 AD2d 794 [delay caused by defendant's Pennsylvania detention excluded when People initiated formal extradition proceedings seven days after being apprised of defendant's arrest].

However, it is settled that the People's due diligence requirement is not satisfied by merely lodging a detainer or filing an arrest warrant with the jurisdiction holding a defendant (see People v Winfrey, 20 NY2d 138[1967]; see also People v Melendez, 92 AD2d 904 [2d Dept 1983]); nor is it sufficient to lodge a detainer and engage in subsequent telephonic requests (see People v Billups, 105 AD2d 795 [2d Dept 1984]). Similarly, a single inquiry by the prosecution to New York City's Department of [*6]Corrections will not suffice (see People v Davis, 184 AD2d 575 [2d Dept 1992]; see also People v Hayden, 2007 NY Slip Op 50778U; 15 Misc 3d 1120A [NY Cnty Crim Ct 2007]), nor will checking addresses in conjunction with speaking to a complainant and running computer searches (see People v Barasso, 193 AD2d 448 [1st Dept 1993]). The prosecution's obligation to exercise diligent efforts and employ reasonable methods "will not be excused unless the People have been unequivocally advised' that the defendant [will] not be released prior to trial and/or sentencing...Even then there must be a showing that the People, after being so advised, continued to make reasonable efforts to obtain defendant's presence," (citations omitted) (People v Delacruz, 184 Misc 2d 653, 657 [Crim Ct NY Cnty, 2000]). In this case, the record does not establish that Connecticut unequivocally advised the People that they would not return defendant to New York; the People's belief that this was so is mere speculation. In any event, even if a showing of Connecticut's refusal was reflected in the record, the holding in Delacruz, supra, requires diligent efforts nonetheless.

There is no support in the statute, precedent or logic for the proposition that the People have the option of waiting until a defendant is serving a term of imprisonment in another state before they engage in diligent, reasonable efforts to secure his or her presence in New York. To the contrary, the People may not delay the resolution of outstanding charges by waiting for likely, eventual, or even inevitable developments in cases pending against a defendant in another state. In this case, the People do not enjoy the luxury of having waited until the defendant was sentenced before they exercised due diligence. Notably, it has been observed that there appears to be no legislative intent to limit the Agreement on Detainers to sentenced prisoners (see Preiser, 1995 Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 570.12), which provides further support for this court's finding that the prosecution may not wait until a defendant is sentenced to commence diligent efforts.

At a minimum, the People must employ the available statutory procedures for securing attendance of a defendant (see People v Babbs, 232 AD2d 496 [2d Dept 1996]; see also People v Singleton, 47 Misc 2d 810 [Cnty Ct Spec Term Nassau 1965])[FN4]. In this case, the People could have lodged a detainer with the Connecticut [*7]authorities for defendant once they learned of his out-of-state detention, so that in the event that defendant was released in Connecticut without warning, there would be a procedural vehicle in place for his return to New York. The term "detainer" is not defined anywhere in the statute, but has been described by the Supreme Court as "a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated asking either to hold the prisoner for the [criminal justice] agency or to notify the [criminal justice] agency when the release of the prisoner is imminent" (Preiser, 1995 Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 580.20). As a practical matter, warrants from the demanding state are often treated as detainers (see People v Monaghan, 34 AD2d 815 [2d Dept 1970]), and nowhere does the Criminal Procedure Law explicitly or implicitly constrict the People's authority by limiting the filing of detainers to situations where defendants detained out-of-state are already serving a term of imprisonment out-of-state [FN5]. Thus, this part of the People's argument is correct, inasmuch as the provisions of CPL 580.20 are not applicable until a defendant's term of imprisonment begins (see People v Reilly, 136 AD2d 355 [2d Dept 1988]).

When the People fail to make a formal request for extradition, even if such a request may be denied, the resulting delay is unreasonable and therefore not excluded (see People v Monaghan, 34 AD2d 815, 817 [2d Dept 1970]; see also People v Davis, 2006 NY Slip Op 3912, 29 AD2d 814 [2d Dept 2006]). While People v Monaghan (id.) involved a motion to dismiss due to prosecutorial delay in sentencing, the analysis in that case is nevertheless instructive, in that the People's duty to exercise due diligence is virtually identical in regard to both speedy trial and speedy disposition. In People v Monaghan, (34 AD2d 815), the court held that the delay occasioned by prosecutorial inaction "might well have been avoided had the [prosecution] made a formal attempt to extradite defendant prior to his sentencing on the [out-of-state] charges, at which time the Governor of [that state] had discretion to honor such a request. Perhaps such a request, even if timely made, would have been denied; nevertheless, the failure to even make such a formal request renders the [ ] delay that followed unreasonable" (People v Monaghan, 34 AD2d 815, 817 [2d Dept 1970]).

Again, such consistent guidance set forth in the statute and precedent makes it abundantly clear that the People cannot choose to delay their exercise of due diligence, as they did in this case. Thus, since the People's submissions support the court's finding that the People had actual knowledge on May 16, 2007 of defendant's Connecticut incarceration, they had a duty to exercise due diligence to secure defendant's presence from that time forward.

In this case, the People made little, if any, effort prior to September 18, 2007, when they finally asked the court to issue a warrant. During the five months that defendant was detained in Connecticut, they did not seek a warrant, nor did they lodge [*8]a detainer, nor did they seek extradition. To the contrary, the only actions taken by the People were an indeterminate number of telephone conversations that started sometime in April 2007, alleged without elaboration or detail. The court finds that this falls short of the duty imposed by statute and further finds that the People had a duty to engage in reasonable and diligent efforts between May 16, 2007 and June 28, 2007, in order for this period of time to be excluded. Since the record does not demonstrate such efforts, and since the People had still not declared their readiness, this time period is chargeable against them.

June 28, 2007 to July 19, 2007 21 Days

On June 28, 2007, the defendant was again not before the court due to his continued incarceration in Connecticut. Nevertheless, the court set a motion schedule on consent, directed the People to produce the defendant and the case was adjourned to July 19, 2007. Since the primary purpose of the adjournment was for the submission of defendant's motions, and despite defendant's incarceration in another jurisdiction and the People's inadequate efforts to produce him, the adjournment is excludable. It is settled that pursuant to CPL 30.30 (4)(a), time for the purpose of defense motions cannot be charged to the People, including reasonable time for the prosecution's response to such motions (see Erdheim v Greiner, 22 F Supp 2d 291 [1998]; see also People v Worley, 66 NY2d 523 [1985]). (Unlike an adjournment for hearings and trial, defendant's presence in court is not absolutely necessary when a motion schedule is set on consent, which consent would constitute a waiver of defendant's right to be present, in any event.) The court finds no reason to ignore the well-established exclusion of time chargeable to the People under these circumstances. Accordingly, this time period is excluded.

July 19, 2007 to August 14, 2007 26 Days

On July 19, 2007, the defendant was again not before the court, as the efforts, if any, on the part of the People to secure his appearance were ineffective. No motions had been filed and defendant again accepted the court's adjournment for motions without objection. Since there is no proof presently before the court that the People made any specific efforts, such as seeking a warrant, which might be described as reasonable to secure defendant's presence in New York during this time period, defendant argues that this time period is chargeable against them, which would put the People's total chargeable time beyond 90 days, thus violating the requirements of CPL 30.30. However, as set forth previously, the well-settled precedent holds that time for defense motions, such as this time period, is excludable.

August 14, 2007 to September 18, 2007 35 days

On August 14, 2007, the defendant was again not before the court. The court ordered suppression hearings, and the matter was adjourned to September 18, 2007 for hearings and trial, as well as for the production of defendant. Because defendant's presence is a necessary prerequisite for material proceedings (see People v Dokes, 79 NY2d 656, 659 [1992]; People v Trendell, 61 NY2d 728 [1984]), and defendant was not before the court in this instance due to prosecutorial inaction, as previously discussed, the People would not be entitled to an exclusion of the time under the holdings in either People v Green (90 AD2d 705 [1st Dept 1982]) or People v Taylor (16 Misc 3d 339 [Crim Ct NY County, 2007]). Accordingly, the time chargeable to the People in this period is [*9]35 days. Adding together all of the time periods chargeable against the People thus far results in a total of 117 days.

Any argument concerning the remaining time periods is moot, inasmuch as the People have failed to meet their statutory obligations under CPL 30.30, and defendant's motion to dismiss is granted.

This constitutes the decision and order of the Court.

Dated:March 6, 2008

New York, New York

_________________________

Elisa S. Koenderman, JCC Footnotes

Footnote 1:Neither the prosecution nor the defense requested a hearing, and the court is satisfied that the present record has been made complete by way of attorney's affirmations as well as the documentary evidence attached thereto (see People v McLaurin, 38 NY2d 123 [1975][factual issue as to when People knew about defendant's incarceration in another jurisdiction remanded for hearing] ; see also People v Scott, 242 AD2d 478 [1997][no material factual issues unresolved by transcripts and parties' submissions]).

Footnote 2:While this factual issue was initially in dispute, the parties now agree that the motion schedule was set on consent and was not ordered over defense counsel's objection.

Footnote 3:Adjournments occasioned by a defendant's motions are ordinarily not chargeable to the People (see People v Worley, 66 NY2d 523 [1985]).

Footnote 4:The Criminal Procedure Law sets forth provisions whereby the People "shall" secure the presence of defendants charged with crimes in this state via extradition, and these provisions, unlike CPL 580.20, make no reference to whether or not such defendants are already sentenced in the out-of-state jurisdiction (CPL 570.54[1], [3]) ("When the return to this state of a person charged with crime in this state is required, the district attorney [ ] shall present to the governor his written application for a requisition for the return of the person charged."). Additionally, looking to the applicable law in Connecticut, it is clear that reciprocal procedures exist for the surrender of defendants with cases pending in Connecticut, who are not yet serving terms of imprisonment (see Conn. Gen. Stat. § 54-175)("If a criminal prosecution has been instituted against such person under the laws of this state [Connecticut] and is still pending, the governor, in his discretion, may either surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state").

Footnote 5: Here, the defendant was detained in Connecticut for several months while violation of probation charges were still pending, and he did not begin serving a term of imprisonment until September 12, 2007, when he was sentenced in Connecticut.