People v Conley
Annotate this CaseDecided on June 17, 2009
Supreme Court, Bronx County
The People of the State of New York
against
Jamal Conley, Defendant.
2110-2007
Erika McDaniel Edwards, Esq. for the defendant
Assistant District Attorney Debra Ann Guarnieri. Esq. for the people
Robert E. Torres, J.
Defendant is charged by indictment, inter alia,with Attempted
Murder in the Second Degree, several assault counts and other charges. Defendant has filed and
served a motion dated January 6, 2009, for an order dismissing the instant indictment pursuant to
CPL §§30.30(1)(a) and an order directing his release from custody pursuant to CPL
§ 30.30 (2)(a). Defendant asserts that the People were not ready to proceed to trial within
the statutory period. He does not address specific periods of delay. Rather, he states that six (6)
months have elapsed since the commencement of the action and ninety (90) days have elapsed
since his arrest. The People, by Affirmation in Opposition dated January 23, 2009, oppose the
motion.
CPL §30.30 [1][a] provides that the People are required to be ready for trial
within six (6) months of the commencement of a criminal action in which the defendant has been
charged with a felony. Further,CPL § 30.30 [2][a] provides that where a defendant is
charged with a felony and has been committed to custody, he must be released on bail or on his
own recognizance if the People are not ready to proceed within ninety (90) days of his
commitment.
For purposes of CPL § 30.30 [1][a], the applicable period commenced with
defendant's arraignment on the felony complaint on April 25, 2007. People v. Carter, 91
NY2d 795, 798 (1998). For purposes of CPL §30.30 [2][a], the applicable period
commenced on April 25, 2007, at the time of defendant's arrest.
Based upon the motions papers submitted and the Court file, this Court makes the following
findings:
Defendant James Conley was arrested on April 25, 2007. Defendant was arraigned
on the felony complaint on the same day and bail was set, and the case was adjourned to Part A,
for April 30, 2007 for grand jury action. Both parties agree that the period from April 25, 2007 to
April 30, 2007 is charged to the People. (5 days charged).
[*2]
On April 30, 2007, a true bill had been voted by
the Grand Jury and the case was adjourned to July 11, 2007. The People contend this period is
excludable.The People have ordered the minutes for this date and ask for an opportunity to
submit a supplemental reply addressing this period. However, as of the date of this decision, said
minutes have not been secured by the Court. Thus, the People have failed to sustain that this time
period or any portion thereof was consented to making it excludable. Therefore, all time prior to
the arraignment or indictment is charged. (72 days charged).
On July 11, 2007, the defendant was arraigned on an Indictment charging his with
Attempted Murder in the Second Degree, Assault in the First Degree, Attempted Assault in the
First Degree, three counts of Assault in the Second Degree, two counts of Assault in the Third
Degree and two counts of Criminal Possession of a Weapon in the Fourth Degree. Motion
scheduled was set and the case was adjourned to September 20, 2007. Both parties agree that this
time is excludable.
On September 20, 2007, the People failed to file a response to defense motions and
the court papers indicated that defendant wished to make a bail application. The case was
adjourned until October 1, 2007, for People's response. The defendant maintains that 11 days are
charged to the People. The Prosecution argues that this time is excludable because motion
practice is not chargeable to the People. The Court agrees with the prosecution. See,
C.P.L.§30.30(4); People v. Scott, 172 Misc 2d 594, 659 N.Y.S.2d 697(1997);
People v. Sivano, 174 Misc 2d 427, 666 N.Y.S.2d 875, appeal denied 91 NY2d 880, 668 N.Y.S.2d 579, 691 N.E.2d 651(1997).
On October 1, 2007, the People again failed to response to defense motions. The
case was adjourned to October 25, 2007 for the People's response. The defendant maintains that
the People are charged with the time. The People state that this time is excludable for motion
practice. The Court agrees with the Prosecution. See, C.P.L.§30.30(4); People v.
Scott, 172 Misc 2d 594, 659 N.Y.S.2d 697(1997); People v. Sivano, 174 Misc 2d
427, 666 N.Y.S.2d 875, appeal denied 91 NY2d 880, 668 N.Y.S.2d 579, 691 N.E.2d 651(1997).
On October 25, 2007, the People failed to file a response again and the matter was
adjourned until October 30, 2007. The defendant maintains that 5days are charged to the People.
The People state that this time is excludable for motion practice. The Court agrees with the
Prosecution. See, C.P.L.§30.30(4); People v. Scott, 172 Misc 2d 594, 659 N.Y.S.2d
697(1997); People v. Sivano, 174 Misc 2d 427, 666 N.Y.S.2d 875, appeal denied 91
NY2d 880, 668 N.Y.S.2d 579, 691 N.E.2d 651(1997).
On October 30, 2007, the People filed their response, a decision was rendered
ordering pre-trial hearings. The case was adjourned to January 17, 2008. Both parties agree that
this time is excludable.
On January 17, 2008, the case was adjourned to February 25, 2008. The defendant
maintains that the People should be charged with 39 days because the People were not ready. The
People maintain that they stated ready and attached the minutes of said date, which supports the
People's contentions. ( 0 days are charged).
On February 25, 2008, defendant consented to an adjournment and the case was
adjourned to April 8, 2008 for hearing and trial. (0 days charged).
On April 8, 2008, defendant consented to an adjournment and the case was
adjourned to May 28, 2008. (0 days charged).
On May 28, 2008, defendant consented to an adjournment and the case was
adjourned to July 14, 2008. (0 days charged).
[*3]
On July 14, 2008, the defendant consented to an
adjournment until September 15, 2008. (0 days charged).
On September 9, 2009, the defendant filed a Demand to Produce Discovery.
On September 15, 2008, the People were not ready for trial. The case was adjourned
for People to respond to defendant's Demand to Produce. The case was adjourned to October 20,
2008. Both parties agree that this time is excluable. (0 days are charged).
On October 20, 2008, the People had not responded to defendant's Demand to
Produce. The case was adjourned to November 6, 2008. The defendant contends that 17 days are
chargeable.(17 days charged).
On November 6, 2008, the People were not ready for trial and failed to respond to
defendant's Demand to Produce. The case was adjourned until December 3, 2008 for hearings
and trials. (26 days charged).
On December 3, 2008, the People were not ready for trial and did not respond to
defendant's Demand to Produce. The case was adjourned to January 6, 2009. (34 days
charged).
On January 6, 2009, the People were not ready for trial and requested two weeks.
The case was adjourned to January 26, 2009. (14 days charged). Additionally on this
date the defendant filed the instant motion moving for dismissal pursuant to CPL
§§30.30(1)(a) and an order directing his release from custody pursuant to CPL §
30.30 (2)(a).
On January 26, 2009, the People filed their response to the instant motion.
CPL § 30.30 [4][a] in pertinent part:
In computing the time within which the people must be ready for trial pursuant to
subdivisions one and two, the following periods must be excluded:
(a) a reasonable period of delay resulting from other proceedings concerning the defendant,
including but not limited to: proceedings for the determination of competency and the period
during which defendant is incompetent to stand trial; demand to produce; request for a bill of
particulars; pre-trial motions; appeals; trial of other charges; and the period during which such
matters are under consideration by the court; or . . .
Thus under the statute, time periods under which motions are "under consideration by the
Court" are normally excludable in that these periods directly result from action taken by the
defendant. See, People v. Reid, 245 AD2d 44, appeal denied, 91 NY2d
1012 (1998);
People v. Inswood, 180 AD2d 649 (2d Dept 1992); People v Toro,
151 AD2d 142 (1st Dept 1989); People v Pani, 138 AD2d 532 (2d Dept 1988). While the
statute is silent as to exactly how much time the People should be afforded to respond to a
defendant's motion, it suggests a "reasonable" time within which to respond. The issue before the
Court is whether the People's ninety-one (91)[FN1] day delay, from October 20, 2008 until January
6, 2009, in filing the response to defendant's motion for a Demand To Produce Discovery was
unreasonable, unduly delayed the proceedings and thus should be charged to the People.
See, People v. England, 84 NY2d 1 (1994); People v. McKenna, 76 NY2d 59
(1990); People v. Commack, 194 [*4]AD2d 619 (2d
Dept 1993); People v. Reid, 245 AD2d at 44.
In their response, the People claim that the motion demanding production of
discovery was complex and involved Brady issues. Moreover, the People allege that defendant's
request involved investigation and related to intricate and grey areas of the law. Additionally, the
People requested an opportunity to obtain minutes and submit a supplemental reply after
reviewing the minutes. As of the date of this decision, the Court has not received the additional
transcripts nor a supplemental reply. More importantly, a review of the Court file reveals that the
People never requested more time to respond or apprised the Court of the complicated issues
presented by said motion. In fact, the Court's notations for the appearance of December 3, 2008,
show that on that date there was no response from the People, no information as to the case, and
the Assistant District Attorney was not present. This Court finds that under the circumstances,
the delay 91 days referenced above, for the People to respond to the motion was
unreasonable.[FN2]
CONCLUSION
Based upon the
aforesaid, defendant's motion to dismiss the indictment pursuant to CPL §30.30[1][a] is
denied. The Court finds that the People are charged one hundred and sixty-eight days (168
days), less than the six months allowable under CPL §30.30[1][a].
Defendant's motion pursuant to CPL §30.30[2] for release from custody, is
denied. Based on the forgoing, the defendant is not entitled to release from custody unless the
prosecution was not ready for trial within the 90 days after commencement of commitment.
Although there were 77 days charged to the People from the date of the arrest until the date of
arraignment, April 25, 2007 through July 11, 2007, said matter was involved in motion practice
from July 11, 2009 until September 20, 2007. See, C.P.L.§ 30.30[2].
The aforesaid constitutes the opinion, decision and order of the Court.
Dated:June 17, 2009
Footnotes
Footnote 1:The defendant filed their motion
on September 9, 2009. On September 15, 2009, the Court gave the People until October 20, 2009
to respond. On that date the People did not have a response. The Court is not charging the People
with this time.
Footnote 2:Notably, the People response to
defendant's Motion Demanding Discovery was filed on April 29, 2009, more than six months
after said motion was filed.
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