People v D.D.

[*1] People v D.D. 2010 NY Slip Op 50837(U) [27 Misc 3d 1221(A)] Decided on May 11, 2010 Crim Ct, Ny County Mella, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2010
Crim Ct, NY County

The People of the State of New York

against

D.D., Defendant.



2008NYXXX



Assistant District Attorney Eun Ha Kim, Esq. appears for the People. The Legal Aid Society, Rosemary Vassallo, appears on behalf of the defendant.

Rita M. Mella, J.

The defendant moves, pursuant to C.P.L. §§ 170.30(1)(e) and 30.30, to dismiss the instant case on grounds that the People failed to comply with their speedy trial obligations. The defendant is charged with Criminal Sale of Marihuana in the Fourth Degree (P.L. § 221.40), an A misdemeanor. This charge requires the People to be ready for trial within 90 days from the commencement of the action (C.P.L. § 30.30(1)(b)).

Criminal Procedure Law § 30.30 "was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial[.]" (People v. Sinistaj, 67 NY2d 236, 239 [1986].) Accordingly, "the question [before the court on this motion to dismiss] is whether or not the People's actions have unreasonably delayed their own readiness for trial." (People v. Asmal-Aucapina, 21 Misc 3d 168, 172 [Crim. Ct., NY Co. 2008].)

To toll the speedy trial clock, it is the People's burden to either announce their readiness for trial or to establish that a time period is statutorily excludable. (People v. Berkowitz, 50 NY2d 333 [1980]; People v. Kendzia, 64 NY2d 331 [1985].) Moreover, when, in the context of a motion to dismiss on speedy trial grounds, the defendant shows that more than the mandatory speedy trial time for the offense(s) he or she is charged with has passed, it is the People's burden to prove any periods of time should be excluded from the speedy trial clock. (Berkowitz, 50 NY2d at 349.)

Periods of prereadiness delay are generally chargeable to the People, unless they can prove time should be excluded pursuant to C.P.L. § 30.30(4). Once the People have properly announced their readiness, their obligations under C.P.L. § 30.30 are satisfied; nonetheless, some postreadiness delays may be chargeable to the People, "but only when the cause of the delay directly implicates the People's ability to proceed with trial." (People v. Cortes, 80 NY2d 201, [*2]210 [1992]; People v. Johnson, 17 AD3d 158, 158 [1st Dept. 2005], lv. denied, 5 NY3d 764 [2005]; People v. Vaughn, 36 AD3d 434, 436 [1st Dept. 2007], lv. denied, 9 NY3d 870 [2007], cert. denied, €" U.S. €", 128 S. Ct. 1711 [2008].)

The defendant maintains that more than 90 days are chargeable to the People, which is in excess of the time allowable under C.P.L. § 30.30. The People argue that the defendant has included a period of time that should be excluded and that only 73 days are chargeable. The parties' disagreement about time chargeable relates to a dispute about whether the 32-day adjournment period from September 18, 2009, to October 20, 2009, was on consent, and thus excludable.

For the reasons that follow, the defendant's motion to dismiss is granted.

The following facts and procedural history form the basis of the present motion.On November 29, 2008, the defendant was arraigned on a complaint and the case was adjourned to January 7, 2009, for conversion. Off calendar, on December 15, 2008, the People filed the supporting deposition necessary for conversion and a Certificate of Readiness. The court finds that this converted the complaint into an information and that the People's declaration of readiness was a valid one. (See Kendzia, 64 NY2d at 337 (declaration of present readiness may be satisfied by written notice served on defense counsel and filed with the court); People v. Douglas, 264 AD2d 671 [1st Dept. 1999], lv. denied, 94 NY2d 862 [1999] (off-calendar announcement of readiness satisfies the People's obligation under C.P.L. § 30.30 and tolls the speedy trial clock for the remainder of the adjournment period).) The parties agree that 16 days of this time period are chargeable to the People.

On January 7, 2009, the court set a schedule for defense motions and adjourned the case for response and decision to March 4, 2009. This adjournment is not chargeable to the People because the defendant initiated pretrial motion practice, excludable pursuant to C.P.L.

§ 30.30(4)(a). (See People v. Shannon, 143 AD2d 572 [1st Dept. 1988], lv. denied, 73 NY2d 860 [1988]; People v. Calderon, 55 AD3d 321 [1st Dept. 2008].) Defendant makes no argument to the contrary.

On March 4, 2009, the People filed and served their response to the defendant's omnibus motion and the court rendered a decision, granting certain pretrial hearings. The case was adjourned for hearings and trial on April 29, 2009. This initial adjournment for hearings and trial following the court's resolution of defense motions is properly excluded from the speedy trial clock pursuant to C.P.L. § 30.30(4)(a). (See People v. Sinisgalli, 24 Misc 3d 135(A) [App. Term, 1st Dept. 2009]; see also People v. Douglas, 209 AD2d 161, 162 [1st Dept. 1994], lv. denied, 85 NY2d 908 [1995]; People v. Green, 90 AD2d 705, 705-06 [1st Dept. 1982], lv. denied, 58 NY2d 784 [1982].) The defendant concedes that zero days are chargeable for this adjournment.

On April 29, 2009, the People were not ready for trial and the court adjourned the case to June 10, 2009. Off calendar, on May 12, 2009, the People filed and served a Certificate of Readiness. Defendant maintains that 13 days are chargeable to the People for the time between the court appearance and the filing of the Certificate of Readiness. The People concede that 13 days are chargeable, bringing the total chargeable days to 29.

On June 10, 2009, the People again were not ready. The court adjourned the case to September 14, 2009. Again, off calendar, the People filed and served a Certificate of Readiness [*3]on July 6, 2009. The parties agree that 26 days are chargeable for the time between the court appearance and the filing of the Certificate of Readiness. As of September 14, 2009, 55 days were chargeable to the People.

On September 14, 2009, the People again answered not ready for trial and asked for September 18, 2009. The court so adjourned the case. The parties agree that 4 days are chargeable to the People for this adjournment, for a total of 59 days charged.

The notations in the court file indicate that despite having requested this day for trial, on September 18, 2009, the People again answered not ready and the court adjourned the case to October 20, 2009. Defendant maintains that the People should be charged with this adjournment. As stated above, the People argue that this adjournment was on consent and that the entire period is excludable.

In their respective affidavits on the instant motion, the parties reference a communication between them in advance of the September 18, 2009 court appearance. They present different versions of the content of that communication. Defense counsel represents that she informed the assigned assistant district attorney ("ADA") on September 17, 2009, that she would be unable to appear for the court date on Friday, September 18th, but that she did not consent to the adjournment. Additionally, counsel indicates that she left a note for the Legal Aid Society attorney appearing for her in court indicating that she would be ready for trial the following Monday, September 21, 2009. It is defense counsel's position that since the People answered not ready on September 18, 2009, and requested no specific date for adjournment, they should be chargeable for the full adjournment period: 32 days.

The People disagree, arguing that the adjournment should be excluded pursuant to C.P.L. § 30.30(4)(b) and defense counsel's consent. The ADA represents that her notes of the conversation with defense counsel in advance of the September 18th court appearance indicate that counsel communicated that she would consent to the adjournment. The People maintain that they reiterated their expectation that defense counsel was consenting to the adjournment on the record at the September 18, 2009 court appearance. The People argue that they are entitled to rely on counsel's representation on the phone that the adjournment would be on consent.

The transcript for the September 18, 2009 proceeding reflects that a Legal Aid Society attorney did appear on behalf of the defendant that day. The People answered not ready as to this matter but announced ready with respect to another of defendant's cases. The People noted that they believed that defense counsel was also not ready. The Legal Aid Society attorney in court clearly expressed that she was not consenting to the adjournment on this matter. The People did not request a specific date for adjournment for this case, although they did request a particular date for adjournment on another of defendant's cases. Upon inquiry from the court, the Legal Aid Society attorney identified certain good and bad future days for defense counsel, and the court selected October 20th [FN1] as the adjourn date. Finally, the court noted that the People would be charged for this adjournment with the time that they had requested.

Upon review of the parties' respective positions about the September 18th adjournment, [*4]and the transcript of the court appearance on that date, the court finds that this adjournment should be chargeable to the People for the following reasons.

First, the People answered not ready. That assigned defense counsel also may not have been ready does not negate the People's unreadiness, particularly here where the People requested this specific day, only four days after the last court appearance. In addition, it is clear from the record that the People's unreadiness was not the result of defense counsel's statement that she would not be in court on September 18th. After all, the People answered ready as to another one of the defendant's cases in which defense counsel was also counsel of record.

Second, there is no indication on the record€"in the transcript€"that defense counsel consented to this adjournment. Indeed, the counsel who appeared in court expressly did not consent.[FN2]

Third, the absence of assigned defense counsel does not qualify as consent. Consent must be explicit and it is the People's burden to make a record so that in just this type of situation, the court can ascertain whether time should be chargeable. (People v. Liotta, 79 NY2d 841, 843 [1992]; see Smith, 82 NY2d 676; see also People v. Stirrup, 91 NY2d 434, 440 [1998].) Here, the record expressly indicates that counsel did not consent to the adjournment and the People never indicated on the record that their understanding was that assigned counsel was in fact consenting.

Fourth, the defendant was not without representation such that exclusion pursuant to C.P.L. § 30.30(4)(f) would apply. (Compare Nunez, 47 AD3d at 546 (defendant not "without counsel" when another Legal Aid Society attorney appears on behalf of assigned Legal Aid Society counsel); with People v. Reed, 19 AD3d 312, 318 [1st Dept. 2005], lv. denied, 5 NY3d 832 [2005] (C.P.L. § 30.30(4)(f) exclusion applies when defense counsel fails to appear and this failure is the predominant cause of the adjournment); People v. Osorio, 294 AD2d 139 [1st Dept. 2002], lv. denied, 98 NY2d 771 [2002].)

Fifth, and finally, the court put the People on notice that they would be charged with the time for this adjournment. All the People had to do was file a Certificate of Readiness if they were indeed ready to proceed in advance of the adjourn date, and thereby stop the speedy trial clock, as they had done on numerous previous occasions. Alternatively, the People could have requested a specific day for adjournment so that only a portion of the adjournment would be chargeable as they did in another of defendant's cases called at the same time. (See Stirrup, 91 NY2d at 440.) But they did no such thing.

For these reasons, the court finds that the People are charged with the full adjournment, bringing the total days chargeable to 91. [*5]

On October 20, 2009, the People again answered not ready and requested a one-week adjournment. The court adjourned the case to December 8, 2009. Defendant maintains that 7 days are chargeable for this adjournment and the People concede that point. Pursuant to the court's decision as to the contested time period, as of December 8th a total of 98 days were chargeable to the People.

On December 8, 2009, the People yet again stated that they were not ready and requested a one-week adjournment. On the record, the court indicated that it calculated 98 days chargeable to the People as of that date. The People conceded that the 30.30 period had elapsed and requested a stay of sealing for thirty days.

On December 28, 2009, the People advanced this case to the calendar and asked that it be restored, maintaining that the C.P.L. § 30.30 time had not run. At the request of defense counsel, the court adjourned the case to February 2, 2010, for People's response and decision on defendant's motion to dismiss pursuant to C.P.L. § 30.30, to be served and filed on January 15, 2010. On that same date, the People served and filed a Certificate of Readiness off calendar. Following a request for additional time to file defendant's motion to dismiss, on February 2, 2010, defendant served and filed his 30.30 motion and the court adjourned the case to March 16, 2010, for the People's response and decision. Off calendar, on February 8, 2010, the People served and filed their response to defendant's motion. On March 16, 2010, the court adjourned the case to May 12, 2010, for decision. This time, December 28, 2009 through May 12, 2010, is not chargeable to the People because the adjournments were caused by motion practice and a period of time during which the matter was under the court's consideration. (C.P.L. § 30.30(4)(a).)

CONCLUSION

Accordingly, there are 98 days chargeable to the People in this matter. The defendant's motion to dismiss the case against him pursuant to C.P.L. § 30.30 is granted.

This constitutes the Decision and Order of the Court.

________________________________

Hon. Rita Mella

Judge of the Criminal Court

Dated: May 11, 2010 Footnotes

Footnote 1:There is an apparent typographic error in the transcript as the adjourn date indicated therein is October 29, 2009. However, the court file identifies the adjourn date as October 20, 2009, and that is the date that the parties next appeared on this matter.

Footnote 2:The court finds that counsel's response to the court's questions about a convenient adjourn date do not qualify as defense counsel actively participating in setting that date such that consent to adjourn could be inferred and the time would be subject to exclusion. This reasoning for excluding the time for certain adjournments has been applied in prereadiness cases in which defense counsel makes a request for a date other than that requested by the People or chosen by the court, but does not apply in this situation in which postreadiness, the People did not request any particular adjourn date. (See People v. Smith, 82 NY2d 676, 678 [1993]; compare People v. Matthews, 227 AD2d 313, 314 [1st Dept. 1996], lv. denied, 88 NY2d 989 [1996]; People v. Nunez, 47 AD3d 545, 546 [1st Dept. 2008]; People v. Allen, 9 Misc 3d 135(A) [App. Term, 2d & 11th Jud. Dists. 2005].)