People v Tingue

[*1] People v Tingue 2010 NY Slip Op 51937(U) [29 Misc 3d 1221(A)] Decided on November 10, 2010 Cattaraugus County Ct Himelein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 19, 2010; it will not be published in the printed Official Reports.

Decided on November 10, 2010
Cattaraugus County Ct

The People of the State of New York

against

Gene C. Tingue, Defendant.



10-72



Lori Rieman, Esq.

District Attorney

Cattaraugus County, New York

For the People

Steven A. Wright, Esq.

2656 West State Street

Olean, New York 14760

For the Defendant

Larry M. Himelein, J.

On December 14, 2009, informations were filed charging defendant with aggravated harassment and two counts of disorderly conduct and an arrest warrant was issued. Defendant was arrested on December 16, 2009, and charged with the additional offenses of second degree assault, resisting arrest and another count of disorderly conduct. He was arraigned in the Town of Freedom on December 16, 2009, and apparently appeared in the Town of Yorkshire on December 21, 2009, when the case was divested to County Court.

On May 6, 2010, the People filed an indictment charging defendant with second degree assault, resisting arrest, aggravated harassment in the second degree and four violations. Defendant was arraigned on May 24, 2010, pleaded not guilty and requested an adjournment for motions. Defendant filed his omnibus motion on July 12, 2010, which included a motion seeking court inspection of the grand jury minutes. The People did not supply the grand jury minutes to the court until October 7, 2010. Defendant now moves to dismiss, contending that the combined periods of pre-readiness delay and post-readiness delay violate the provisions of CPL 30.30

The period between December 21, 2009, when the case was divested, and May 6, 2010, when the People filed their statement of readiness, is chargeable to the People (People v. Cortes, [*2]80 NY2d 201, 590 NYS2d 9 [1992]; People v. Soluri, 300 AD2d 988, 752 NYS2d 190 [4th Dept 2002], lv denied 100 NY2d 543, 763 NYS2d 9 [2003]; People v. Coxon, 242 AD2d 962, 662 NYS2d 659 [4th Dept 1997]). This period totals 136 days. Defendant contends that the 87 day period, or a substantial part of the period, between the service of his omnibus motion and the District Attorney's delivery of the grand jury minutes to the court is also chargeable to the People.

In People v. Anderson (66 NY2d 529, 498 NYS2d 119 [1985]), the Court of Appeals held that the People's delay in providing lab reports and a supplemental bill of particulars was not chargeable to them for 30.30 purposes because the People's failure to timely comply had no bearing on their readiness for trial. However, in People v. McKenna (76 NY2d 59, 556 NYS2d 514 [1990]), the same court held that the People's failure to supply the grand jury minutes to the court for five months somehow had a "direct bearing" on the People's readiness (see also People v. Harris, 82 NY2d 409, 604 NYS2d 918 [1993]; People v. England, 84 NY2d 1, 613 NYS2d 854 [1994]). While this court of limited intelligence has immense difficulty seeing the difference between failing to supply materials a defendant is constitutionally or statutorily entitled to prior

to trial and not supplying the grand jury minutes to a court for review, it is clear that appellate courts see the issue differently.

Two questions are thus presented: (1) when does the 30.30 period commence for these purposes and (2) what constitutes a reasonable time in which to supply the grand jury minutes to the court? In Harris (82 NY2d 409, 604 NYS2d 918 [1993]), the court held that the People's obligation to supply the grand jury minutes within a reasonable period of time begins on the date the defendant moves for inspection of the minutes and dismissal (see also People v. Miller, 290 AD2d 814, 736 NYS2d 773 [3d Dept 2002], lv denied 98 NY2d 678, 746 NYS2d 467 [2002]; People v. Mitchell, 276 AD2d 822, 714 NYS2d 163 [3d Dept 2000], lv denied 96 NYS2d 803, 726 NYS2d 381 [2001]).

What constitutes a reasonable period in which to produce the grand jury minutes? In Harris, the Court of Appeals affirmed an Appellate Division holding that 36 days was a reasonable period to produce the minutes. The Fourth Department appears to have adopted this 36 day period as reasonable in People v. Roscoe (210 AD2d 1003, 620 NYS2d 635 [1995], app denied 85 NY2d 913, 627 NYS2d 336 [1995]). In People v. Van Deusen (228 AD2d 987, 645 NYS2d 125 [1996]), the Third Department found that 47 days was reasonable and in People v. Dearstyne (230 AD2d 953, 646 NYS2d 1000 [1996], app denied 89 NY2d 921, 654 NYS2d 723 [1996]), the same court approved 50 days. In People v. Lawrence (222 AD2d 279, 635 NYS2d 223 [1995], app denied 88 NY2d 881, 645 NYS2d 455 [1996]), the First Department charged the People with the time after 36 days. However, the Third Department has held that, while a reasonable period to obtain the grand jury minutes is excludable, the time the minutes are in the People's possession before being transferred to the court is chargeable against the People (People

v. Del Valle, 234 AD2d 634, 651 NYS2d 626 [3d Dept 1996], app denied 89 NY2d 1010, 658 NYS2d 249 [1997]). The People argue that any delay in producing the grand jury minutes is irrelevant because

defendant also requested a Huntley hearing, which was not held until October 4, 2010. Because delays caused by motions or hearings are excludable from 30.30 calculations (CPL 30.30 [4] [a]; [*3]People v. Brown, 99 NY2d 488, 758 NYS2d 602 [2003]; People v. Worley, 66 NY2d 523, 498 NYS2d 116 [1985]; People v. Whitfield, 265 AD2d 894, 697 NYS2d 214 [4th Dept 1999], lv denied 94 NY2d 868, 7904 NYS2d 544 [1999]; People v. Peyton, 244 AD2d 976, 665 NYS2d 218 [4th Dept 1997], app denied 91 NY2d 896, 669 NYS2d 10 [1998]), the People contend that they should only be chargeable with the delay between October 4th, when the hearing was held, and October 7th, when the minutes were supplied to the court. While this position is clearly logical (defendant requested a hearing, the hearing was scheduled for October 4, 2010, ergo, how can the People be responsible for any delay before the hearing is held?), and this court agrees with it, the appellate courts do not.

In People v. Rodriguez (214 AD2d 1010, 626 NYS2d 607 [4th Dept 1995]), the Appellate Division rejected the People's argument that the delay in providing the grand jury minutes to the court should be excluded because other defense motions were pending (see also People v. Roscoe, 210 AD2d 1003, 620 NYS2d 635 [4th Dept 1994], lv denied 85 NY2d 913, 627 NYS2d 336 [1995]; People v. Johnson, 42 AD3d 753, 839 NYS2d 346 [3d Dept 2007], lv denied 9 NY3d 923, 844 NYS2d 178 [2007] [delay in providing grand jury minutes to court chargeable to People "[r]egardless of whether other motions are under consideration by the court"]; McKenna, 76 NY2d 59, 556 NYS2d 514).

Here, the People had 182 days to announce their readiness for trial (People v. Cortes, 80 NY2d 201, 590 NYS2d 9 [1992]; People v. Militello, 199 AD2d 1053, 606 NYS2d 115 [4th Dept 1993]; People v. Respress, 195 AD2d 1053, 600 NYS2d 535 [4th Dept 1993]; People v. Ramos, 48 AD3d 984, 851 NYS2d 724 [3d Dept 2008], lv denied 10 NY2d 938, 862 NYS2d 345 [2008]). As noted, 136 days of pre-indictment time are chargeable to the People. The 87 day period from the time of defendant's motion to delivery of the grand jury minutes to the court, if charged to the People, would bring the total to 223, and the indictment must be dismissed.

If 36 days are excluded (see Harris, 82 NY2d 409, 604 NYS2d 918 [1993]; Roscoe, 210 AD2d 1003, 620 NYS2d 635 [1995], app denied 85 NY2d 913, 627 NYS2d 336 [1995]), the total becomes 187, still over the 30.30 period. However, the Appellate Division in this Department has not said that more than 36 days is unreasonable and if this court followed the fifty days permitted in Dearstyne, the People would have 11 days to spare.

Regrettably, the People's responding affidavit sets forth no facts upon which this court could base a decision. They did not indicate when they requested the grand jury minutes or when they received them. If they were received 50 days after defendant filed his motion, the People's case may survive. If, however, they sat in the District Attorney's office, any time after their receipt is chargeable to the People (Del Valle, 234 AD2d 634, 651 NYS2d 626 [3d Dept 1996], app denied 89 NY2d 1010, 658 NYS2d 249 [1997]).

Accordingly, the clerk is directed to schedule a hearing.

Dated: Little Valley, New York

November 10, 2010

_________________________

HON. LARRY M. HIMELEIN