People v Huger

[*1] People v Huger 2009 NY Slip Op 50472(U) [22 Misc 3d 1137(A)] Decided on March 9, 2009 Supreme Court, Queens County Gavrin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2009
Supreme Court, Queens County

The People of the State of New York

against

Garrett Huger, Defendant



N10651/2007



BY: David I, Levine, Esq.

For the Motion

Hon. RICHARD A. BROWN, D. A.

BY: Aisha Greene, A.D.A.

Opposed

Darrell L. Gavrin, J.

Pursuant to CPL §§30.20, 30.30(1)(a), and 210.20 (g), the defendant, Garrett Huger, seeks an order of the Court dismissing the indictment filed against him on the ground that the People have failed to proceed to trial of this matter within the statutory time period allowed.

Defendant Huger maintains that two hundred seventy-eight (278) days are chargeable to the People thereby exceeding the six months or the one hundred and eighty-four (184) day statutory period.

The People maintain that they can only be charged with one hundred thirty seven (137) days. The People have submitted and relied upon the minutes for proceedings on the following dates (13 dates).

10/16/07 -Tap A

11/13/07 -Tap A

01/08/08 - K -12

01/30/08 - K -12

02/13/08 - K -12

03/04/08 - K -12 [*2]

03/18/08 - K -12

04/30/08 - K -12

05/19/08 - K -12

07/21/08 - Tap A

09/09/08 - K -21

10/07/08 - K -21

10/30/08 - K -21

"Where, as here, a defendant makes a prima facie (emphasis in original) showing that the People exceeded the six-month trial readiness deadline, the burden falls on the People to demonstrate that the delay greater than six months should be excluded (See People v. Santos, 68 NY2d 859, 861; People v. Kendzia, 64 NY2d 331, 337)" People v. Suarez, (259 AD2d 640, 687 NYS2d 650 (1999).

Defendant was arrested on May 15, 2007. At his arraignment on May 17, 2007, defendant Huger executed a waiver of his rights pursuant to CPL §30.30 until July 9, 2007. The People maintain that an indictment was filed with a statement of readiness on July 19, 2007. In support of this contention, the People annex their statement of readiness dated July 19, 2007, which conforms with the date on the filed indictment contained in the Court file. In the Court file, there is also an affidavit of service by mail of a statement of readiness to defendant Garrett Huger's counsel of record on July 19, 2007.

Defendant maintains that the People are chargeable with fourteen (14) days for this period, on the ground that defense counsel was actually served with a statement of readiness on July 23, 2007. The People maintain that they can only be charged ten (10) days, from the date of expiration of the waiver on July 9, 2007 to July 19, 2007, when the statement of readiness was filed.

In People v. Anderson (231 AD2d 459, 747 NYS2d 737), the Appellate Division, First Department, "held that the provision of the CPLR §2103 (b) (2), which adds five days to the "prescribed period" when service is by mail,... [h]as no application to the determination of the effective date of a statement of readiness." Thus, the People are correct in their claim that only ten (10) days can be charged for this period of time.

The next series of adjournments occurred in what is commonly referred to as the "post-readiness" stage of the case, which is the time in the case when the People have initially stated their readiness for trial on the record, but have subsequently announced [*3]"not ready" to proceed on the record.

On October 16, 2007, the People were not ready to proceed on a Court ordered hearing and requested October 22, 2007. The Court actually adjourned the hearing to November 13, 2007. On the record, the People conceded they would be charged for the time until October 22, 2007. Nevertheless, the People maintain that this entire period should be excluded on the grounds that they are entitled to a reasonable period of time to be ready for the ordered hearing. However, defendant

avers that the People should be charged with the entire period because of their subsequent statements of "not ready."

On November 13, 2007, the People announced "ready to proceed" on the record, and the defendant requested an adjournment. The matter was adjourned to January 8, 2008.

On January 8, 2008, the People announced "not ready" on the record. Counsel for the People was unable to state a specific reason and requested January 29th or 30th, 2008. The Court adjourned the matter to January 30, 2008 and stated that the time was chargeable to the People.

On January 30, 2008, the People announced "not ready", due to the fact that the assigned A.D.A. was on trial. The People requested February 6, 2008. The matter and hearing was adjourned to February 13, 2008

On February 13, 2008, the People announced "not ready," as the A.D.A. assigned was still on trial and they requested February 15, 2008. The case was thereupon adjourned by the Court to March 4, 2008.

On March 4, 2008, the People again announced "not ready." The assigned A.D.A. was still on trial, and the People requested March 6, 2008. The defendant challenged the People's statement that they would be ready to go forward on March 6, 2008. The Court noted that it was the People's fourth consecutive announcement

of "un-readiness," and adjourned the matter to March 18, 2008.

On March 18, 2008, the People announced "not ready," yet again, on the record and offered as a reason that the officer had a family emergency and had to rush his daughter to the hospital. The People requested March 21, 2008, and the case was adjourned to April 8, 2008. [*4]

On April 8, 2008, the matter was adjourned at the request of defense counsel to April 30, 2008. On April 30, 2008, the hearing commenced. Testimony was taken, and the hearing was adjourned to May 19, 2008 for the defense to call a witness.

On May 19, 2008, the record reflects defense counsel's statement that the People were "not ready." The People did not challenge that representation. The People requested May 21, 2008. The defendant was not present for the calendar call on May 21, 2008. A bench warrant was issued and stayed, but the Court noted "if he comes in," the warrant will be vacated and the People will be charged to May 21, 2008. The Court file indicates "Released on Own Recognizance" (ROR) continued. The case was adjourned to June 19, 2008.

The People have not provided the minutes for the proceedings from June 19, 2008. The Court file lacks any markings as to whether the People announced "ready" for trial following the completion of the hearing, which each side conceded occurred on June 19, 2008. The matter was adjourned for trial to July 21, 2008.

On July 21, 2008, the People announced "not ready" and requested August 4, 2008. However, defense counsel requested September 9, 2008.

On September 9, 2008, the People announced "not ready" because they had

failed to procure sentencing minutes from September 12, 2007. The People

requested September 30, 2008. The matter was adjourned to October 7, 2008. The

Court stated that the People would be charged only until September 30, 2008.

On October 7, 2008, the People announced "not ready" and requested a two week adjournment stating that there were medical problems with the primary

witness. They also admitted that they did not have the necessary minutes that constituted the reason for the previous adjournment. The trial again, was adjourned to October 30, 2008.

On October 30, 2008, the People announced they were "not ready." The case was adjourned to December 4, 2008. The Court noted that the time was charged to the People.

On December 4, 2008, the People concede that they announced "not ready," again. The People failed to provide minutes for the proceedings on that day. The People maintained that the reason for their un-readiness was the unavailability of the A.D.A. assigned to the matter. The People requested December 12, 2008. Defense counsel [*5]concedes that the People requested that date. The matter was adjourned to January 9, 2009.

On January 7, 2009, counsel for the defense filed the instant motion.

CONCLUSIONS OF LAW

"In the post readiness context, the People bear the burden of ensuring that the record explains the cause of adjournments sufficiently for the Court to determine which party should properly be charged with any delay (People v. Liotta, 79 NY2d 841, 843; accord People v. Collins, 82 NY2d 177, 182; People v. Cortes, 80 NY2d 201, 215 -216)." (People v. Stirrup, 91 NY2d 434, 440, 671 NYS2d 433 (1998.)

Moreover, the courts have continued to hold that this requires more than "...

a mere empty assertion of readiness ( See People v. England, 84 NY2d 1; People v. Kendzia, 64 NY2d 331, 337)." (Id. at 440.)

The circumstances of this case exemplify the dilemma facing the court called upon to resolve the conflicting claims as to the true state of the People's claimed "readiness" to proceed, by examining a series of calendar calls where the People have announced "not ready" on a number of consecutive appearances.

In the "post-readiness" context, courts have routinely held that the time to be

charged to the People, when a matter is adjourned following a statement of "not ready," should only consist of that time, which was requested by the People. (See eg. People v. Bruno, 300 AD2d 93, 95 [1st Dept. 2002], appeal denied 100 NY2d 641 (2003); People v. Bailey, 221 AD2d 296, [1st Dept. 1995]; People v. Urraea, 214 AD2d 378 [1st Dept.].)

In the cases noted above, the First Appellate Department relied on their holding, and the rule, established in People ex rel. Sykes v. Mitchell, (184 AD2d 466, 586 NYS2nd 937 [1st Dept. 1992]. That rule, expressed succinctly in People v. Urraea, 214 AD2d 378, 625 NYS2d 163 is: "... if the People's request [for an adjournment ] is made prior to their statement of readiness the entire period is chargeable to the People, but post readiness, the opposite rule applies and the People are chargeable with only the actual period they requested." (Id. at 378 (emphasis in the original.)[*6]

Such a rule, which provides a short-hand formula for determining how to charge adjournments for CPL §30.30 purposes, seems on it's face inconsistent with the prohibition against claiming "prospective readiness" (People v. Kendzia, 64 at NY2d at 337), especially when applied in circumstances, such as where the People

announce "not ready" on numerous consecutive court appearances, but maintain

that they would have been "ready" on dates requested in between adjournments.

Repeated announcements that the People are "not ready" on consecutive court appearances is bound to raise doubts as to the People's true state of readiness. (See People v. Nunez, 47 AD3d 545, 546, 851 NYS2d 128 [2008], [the calendar Court indicated its skepticism, noting the People's four prior requests for an adjournment].)

However, the People's un-readiness on successive calendar calls does not, standing alone, provide a basis for questioning prior claims of "readiness." ( People v. Camillo, 279 AD2d 326, 719 NYS2d 239 [(1st Dept. 2001].)

"Unlike pre-readiness delay, post-readiness delay may be charged to the People only where, and to the extent, a delay is actually caused by them (People v. Cortes, 80 NY2d 201, 210; People v. Anderson, 66 NY2d 529, 536)" People v. Dushain, (247 AD2d 234, 236, 669 NYS2d 30 [1st Dept. 1998]; (accord People v. Williams, (32 AD3d 403, [2nd Dept. 2006]).

The record before this Court does not provide any basis for charging the People with any more than the time requested by them on calendar calls for the scheduling of the defendant's pre-trial hearings.

Accordingly, for the adjournments between October 16, 2007 to September 9, 2008, only the time reflecting the dates actually requested by the People may be charged to the People, for a total of fifty -seven (57) days.

With regard to the period of time following the completion of the Court ordered pre-trial suppression hearing ( June 19, 2008) to the first date the matter was placed on the trial calendar (July 21, 2008), the People assert that this time should also be excluded, but fail to provide a record of the proceedings for June 19, 2008 to substantiate their claim. Nevertheless, the Court notes in the case at bar, as in

People v. Stirrup, (91 NY2d at 440), the defendant "... has not contested the

People's actual readiness ..." for that period of time and therefore, the time will not be charged to the People. (Id.) [*7]

However, the People have failed to meet their burden with respect to the challenged adjournments following September 9, 2008. On September 9, 2008, the

People announced "not ready" and offered as an explanation that they lacked certain sentencing minutes necessary to proceed to trial. On the following Court appearance on October 7, 2008, the People again announced "not ready," and offered the explanation that a certain necessary witness was unavailable.Furthermore, they still lacked the minutes deemed necessary to their readiness on the previous dates.

Thus, their prior claim of prospective readiness for September 30, 2008 was in fact "illusory," and insufficient to support their contention. As the Court of Appeals held in People v. Kendzia, (64 NY2d 331, 337, 486 NYS2d 888), "[t]he statute [30.30] contemplates an indication of present readiness, not a prediction or explanation of future readiness." This is particularly true when the reason offered for their lack of readiness continues. No explanation was proffered by the People that they had abandoned the need for the minutes or that they were willing to proceed without said minutes.

On December 4, 2008, the People again announced "not ready." The People did not annex any minutes of the proceeding from that date, but defense counsel acknowledged that the People requested December 12, 2008 for trial. People v. Stirrup, 91 NY2d at 440. The case was adjourned to January 9, 2009. In the interim, the defendant filed the instant CPL §30.30 motion thereby stopping the "speedy-trial" clock from ticking. People v. Bruno, 300 AD2d at 95.

Accordingly, the People are charged with all of the time from September 9, 2008, when they announced "not ready," to December 12, 2008, the date the People requested. The defense concedes that on December 4, 2008 they asked for an adjournment past December 12, 2008. Thus, for this period of time the People are charged with ninety-four (94) days.

Adding all of the time together, ten (10) days of pre-readiness time, fifty-seven (57) days while the People were not ready to proceed with the hearing and finally,

an additional ninety-four (94) days when the People were not ready to proceed to

trial, amounts to one hundred sixty-one (161) days.

This is, of course, short of the necessary one hundred eight-four (184) days, and the defendant's motion is denied.

Date: March 9, 2009

J.S.C.