People v Lin Chen

[*1] People v Lin Chen 2008 NY Slip Op 52153(U) [21 Misc 3d 1123(A)] Decided on October 15, 2008 Supreme Court, Kings County McKay, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 28, 2009; it will not be published in the printed Official Reports.

Decided on October 15, 2008
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Lin Chen, LING DONG, SHI DONG and XING DONG, DEFENDANTS.



6429-07



For the People: Assistant District Attorney Kelli M. Muse, Kings County

For the Defense: Scott B. Tulman, Esq., Jonathan D. Sims, Esq., John Russell, Esq.

Joseph Kevin McKay, J.

Defendants' joint motion to dismiss this indictment based on a violation of their statutory rights under CPL 30.30 is GRANTED. The Court has reviewed all papers submitted in support of and in opposition to this motion and has heard oral argument from both sides on September 16, 2008.

Defendants claim 249 days (the Court computed 251 days)[FN1] are chargeable to the People from the commencement of those actions in Criminal Court on July 5, 2007 and June 11, 2008, when a new statement of readiness was served and filed by the People, followed by this motion. The prosecution acknowledges that all of the periods claimed by defense were in fact charged to the People during the course of the pre-trial proceedings, but belatedly claim that they continued to be ready throughout these periods, in reliance on the original statement of readiness served and filed on August 3, 2007, with the filing of the indictment, and that all these adjournments concerned discovery, which should not result in chargeable time.

Given that this initial statement of readiness has been called into question and challenged by this motion, the District Attorney must justify its bona fides and its continued viability. Neither the prosecutor's affirmation in opposition nor the Assistant's oral argument presentation make a strong defense of its legitimacy, i.e., that it was an [*2]effective statement of the People's then current readiness. The explanation sounded as if, as of the filing of the indictment, the District Attorney was ready for the next step in the process and could get ready for trial soon if that were to become necessary.

The admitted turnover in assigned personnel within the District Attorney's office, which accounted for at least some of the many excessive and unreasonable delays in obeying the directions of the Calendar Judges, calls into question the continued viability of that initial statement of readiness, even if it was justified at the time. These repeated and flagrant failures of the prosecution to follow the directions of the Court since November 2, 2007 until June 11, 2008 simply cannot be ignored nor be shielded by an early, apparently pro forma statement of readiness. See, People v. Kendzia, 64 NY2d 331 (1985).

An example of the prosecution's failure to demonstrate continued readiness is the lack of documentation from the prior assigned Assistant, who left the office in December 2007. No copies of subpoenas, no affidavits of service of material allegedly sent to the defense attorneys on December 10, 2007 but not received by them, no details of efforts to comply in timely fashion with Court directions, and no transition memorandum explaining the status of the case at the time of transmittal to another Assistant, were produced. Another example of the prosecution's failure to be continuously ready for trial is their long-delayed response to yet another Court direction on March 4, 2008 to furnish certain material to the defense, specifying that the People could stop the running of speedy trial time by serving and filing a new statement of readiness when the directions were followed and when the prosecution was ready. The prosecutor delayed filing a new statement of readiness until June 11, 2008.

The People now argue (in legal argument, not in the Affirmation in Opposition) that the medical records were not needed for trial as far as the prosecution is concerned, and invoke cases which hold that the failure to produce medical records should not result in a speedy trial violation. See, People v. Wright, 50 AD3d 429 (1st Dept 2008), lv denied 10 NY3d 966 (2008); People v. Biamonte, 19 Misc 3d 139(A) (App Term, 9th & 10th Jud Dists 2008). The time to have made that point to the Court was much earlier when the prosecution, instead, undertook to obtain the medical records for their own use and in turn to provide them to the defense, which was not disputed by the People on any of the several calendar calls of this indictment.

Defendants rely on the law of the case doctrine and cite People v. Gonzalez, 266 AD2d 562 (2d Dept 1999), lv. denied 94 NY2d 920 (2000). That case is ambiguous at best regarding the application of the "law of the case" rule to 30.30 motions, but no doubt the Court should accord great deference to the calendar rulings of other Judges of coordinate jurisdiction, at least when those rulings are made in an adversarial setting in open court, after hearing from both sides. Compare, People v. Berkowitz, 50 NY2d 333 (1980). Consider also the cases which hold that the prosecution is entitled to rely on prior Court rulings or designations that certain adjournments are excludable. People v. Robinson, 171 AD2d 475 (1st Dept 1991), lv. denied 78 NY2d 973 (1991) and People v. Wilson, 119 AD2d 843 (2nd Dept 1986). Surely this principle should apply to the defense under appropriate, similar circumstances, and permit the defense to rely on reasonable contrary [*3]designations. It is therefore in that vein that I am now following the prior designation of a previous Calendar Judge and my own similar designations in holding that: those periods represent unreasonable delays by the prosecution, that they legitimately call into question the continued actual present readiness of the prosecution and are thereby deemed to impair that "readiness." Those delays also impaired the ability of the defense and the Court to proceed to the hearing and trial of this indictment.

These circumstances place this indictment in the posture of other cases where Courts have found that even discovery delays - - in violation of Court orders - - can cause speedy trial violations. People v. Daley, 265 AD2d 566 (2d Dept 1999); People v. Reid, 245 AD2d 44 (1st Dept 1997); lv. denied 91 NY2d 1012 (1998); People v. Holmes, 206 AD2d 542, 544 (2d Dept 1994), lv. denied 79 NY2d 920 (1992). Accordingly, under the special circumstances of this indictment, I have concluded that all of the periods of delay described in this opinion are properly chargeable to the prosecution, and exceed the statutory period of 184 days for the People to be actually ready for trial. The indictment is DISMISSED against all defendants.

IT IS SO ORDERED.

ENTER,

___________________________

J.S.C. Footnotes

Footnote 1: This calculation includes 29 days of pre-indictment time, and all adjournments from November 2, 2007 until June 11, 2008, which add up to 222 days.