People v Canosa

[*1] People v Canosa 2013 NY Slip Op 50354(U) Decided on March 11, 2013 District Court Of Nassau County, First District Engel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2013
District Court of Nassau County, First District

The People of the State of New York,

against

Joseph Canosa, Defendant.



2011NA004788



Hon. Kathleen Rice, Nassau County District Attorney

Christopher Devane, Esq., Attorney for Defendant

Andrew M. Engel, J.

The Defendant is charged with Driving While Intoxicated and Driving on the Shoulder, in violation of VTL §§ 1192(3) and 1131, respectively.

By Notice of Motion dated September 6, 2012 the Defendant moved to dismiss this matter pursuant to CPL §§ 170.30(1)(e) and 30.30(1)(b). The People opposed that motion. By Decision and Order dated November 16, 2012, Hon. Robert H. Spergel set the matter down for a hearing to be held on January 9, 2013. On that date, the matter was adjourned to February 11, 2013.

On February 11, 2013, Judge Spergel having been elevated to the County Court, the matter came on for hearing before this court (Engel, J.). At that time no witnesses were called; and, the parties were heard, at length, on the issues presented. The argument of the parties made clear that there were no disputed issues of fact upon which testimony need have been offered. Only questions of law remained to be resolved in relation to the uncontroverted facts.

The history of the case is as follows:

The Defendant was arraigned on March 2, 2011. Following his arraignment, at the Defendant's request, the matter was adjourned to March 23, 2011.On that date, the matter was adjourned, at the Defendant's request, to May 12, 2011. Defendant asked for an adjournment, to make motions on May 12, 2011; and, the matter was adjourned to July 7, 2011. At that time, upon the Defendant's request, the matter was adjourned to August 16, 2011. The People consented to the court conducting a Mapp/Huntley/Dunaway [FN1] hearing on August 16, 2011, as requested by the Defendant; and, the matter was adjourned, for hearing, to October 14, 2011. The matter was then adjourned for hearing, all at the Defendant's request, from October 14, 2011 to [*2]December 8, 2011; from December 8, 2011 to January 24, 2012; and from January 24, 2012 to February 24, 2012.

On February 24, 2012 the People were not ready to proceed with the hearing and requested that the matter be adjourned to March 2, 2012. The Defendant then requested an adjournment from March 2, 2012 to March 28, 2012; and, the matter was adjourned to the latter date.

On March 6, 2012 the People filed and served upon the Defendant a Certificate of Readiness for Trial.

On March 28, 2012 the People were not ready to proceed with the hearing and requested that the matter be adjourned to April 4, 2012. The court adjourned the matter to May 11, 2012.

On May 5, 2012 the People filed and served on Defendant a Certificate of Readiness for Hearing.

On May 11, 2012 the People were not ready to proceed with the hearing and requested that the matter be adjourned to May 18, 2012. The court adjourned the matter to June 14, 2012.

On June 14, 2012 the People were not ready to proceed with the hearing and requested that the matter be adjourned to June 21, 2012. The court adjourned the matter to July 24, 2012.

On July 24, 2012 defense counsel was engaged in a hearing before Judge Ferrell and was not ready to proceed with the hearing. The matter was then adjourned to August 8, 2012.

On August 8, 2012 the Defendant requested time to file this motion; and, the matter was adjourned, for that purpose, to September 27, 2012.

Based upon the foregoing, it is uncontroverted that five hundred seventy three (573) days have passed since the Defendant was arraigned. It is likewise without controversy that the first three hundred fifty seven (357) days of delay, between March 2, 2011 and February 24, 2012, were the result of the Defendant's request or consent for an adjournment. Similarly, the delay of sixty five (65) days between July 24, 2012 and September 27, 2012 was the result of defense applications for adjournments. The period which remains in controversy is the one hundred fifty one (151) days between February 24, 2012 and July 23, 2012, inclusive.

The Defendant argues that the entire period in controversy is to be charged to the People. The Defendant suggests that the People's Certificate of Readiness For Trial, filed and served on March 6, 2012, was illusory. In support of this argument, the Defendant points to the People's failure to be ready to proceed with the stipulated hearing on four (4) successive dates, each time requesting a one (1) week adjournment, but failing to be ready for the hearing on the next date.

The People argue that they are to be charged with only thirty two (32) days of delay. It is the People's position that, having declared their readiness for trial on March 6, 2012, they are only to be charged with the time they requested on each adjourned date.

To resolve these issues, one must be familiar with the concepts of how the People declare their readiness, what it means to be "ready for trial," "pre-readiness" adjournments by the People and "post-readiness" adjournments by the People.

How the People declare their readiness for trial was squarely addressed by the Court of Appeals in People v. Kendzia, 64 NY2d 331, 337, 486 N.Y.S.2d 888, 890 (1985) The court made clear:

that ready for trial' in CPL 30.30(1) encompasses two necessary elements. First, there must be a [*3]communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record (citations omitted). As the prosecutor must make an affirmative representation of readiness (citation omitted), he may not simply rely on the case being placed on the trial calendar.

The second requirement under the statute, ..., is that the prosecutor must make his statement of readiness when the People are in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness.

See also: People v. McKenna, 76 NY2d 59, 556 N.Y.S.2d 514 (1990); People v. Chavis, 91 NY2d 500, 673 N.Y.S.2d 29 (1998)

In determining the People's present readiness, for speedy trial purposes, "[t]he inquiry is whether the People have done all that is required of them to bring the case to a point where it may be tried (see, People v. McKenna, 76 NY2d 59, 64-65)." People v. England, 84 NY2d 1, 4, 613 N.Y.S.2d 854 (1994); See also: People v. Carter, 91 NY2d 795, 676 N.Y.S.2d 523 (1998); People v. Beasley, 69 AD3d 741, 893 N.Y.S.2d 201 (2nd Dept. 2010) While "[t]he test is whether the People are able to present their case and do so immediately[,]" People v. Robinson, 171 AD2d 475, 477, 567 N.Y.S.2d 401 (1991); See also: People v. Peters, 31 Misc 3d 131(A), 927 N.Y.S.2d 818 (App. Term 9th & 10 Jud. Dists. 2011) "[t]he People are not required to contact their witnesses on every adjourned date (citation omitted), nor do they have to be able to produce their witnesses instantaneously in order for a statement of readiness to be valid (see, People v. Dushain, 247 AD2d 234, 669 N.Y.S.2d 30 lv. den. 91 NY2d 1007, 676 N.Y.S.2d 135, 698 N.E.2d 964)." People v. Camillo, 279 AD2d 326, 719 N.Y.S.2d 239 (1st Dept. 2001)

The People's declaration of readiness "is presumed to be accurate and truthful (see People v. Caussade, 162 AD2d 4, 12, 560 N.Y.S.2d 648, lv. denied 76 NY2d 984, 563 N.Y.S.2d 772, 565 N.E.2d 521)[;]" People v. Acosta, 249 AD2d 161, 674 N.Y.S.2d 2 (1st Dept. 1998) lv. den. 92 NY2d 892, 680 N.Y.S.2d 56 (1998), and, having declared their readiness, absent a substantial break in the proceedings, "they are under no obligation to continually repeat that declaration upon each subsequent appearance in court (People v. Cortes, 80 NY2d 201, 214, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992]; People v. Reid, 214 AD2d 396, 625 N.Y.S.2d 171 [1995])." People v. Reed, 19 AD3d 312, 313, 798 N.Y.S.2d 47, 50 (1st Dept. 2005) lv. den. 5 NY3d 832, 804 N.Y.S.2d 46 (2005) Moreover, "the fact that the People are not ready on subsequent adjourned dates, after they have filed a certificate of readiness, does not render their certificate of readiness illusory (People v. Anderson, 105 AD2d 38 [1984], aff'd 66 NY2d 529 [1985]; see also Robinson, 171 AD2d 475)." People v. Peters, supra.; See also: People v. Douglas, 264 AD2d 671, 696 N.Y.S.2d 115 (1st Dept. 1999) lv. den. 94 NY2d 864, 704 N.Y.S.2d 537 (1999)

Prosecutorial delay before the People's announcement of ready will be treated differently than prosecutorial delay after the People's announcement of ready for purposes of calculating speedy trial time. People v. Anderson, 66 NY2d 529, 498 N.Y.S.2d 119 (1985) "Pre-readiness" delay, unless otherwise excludable, [See: CPL § 30.30(4)], will be charged entirely to the People, whether they asked for the entire period of the adjournment or not. In the "pre-readiness" posture, [*4]"they cannot take advantage of court congestion so as to ignore their own responsibility of being ready for trial on time (see, People v. Brothers, 50 NY2d 413, 417-418, 429 N.Y.S.2d 558, 407 N.E.2d 405, supra)." People v. Kendziz, supra. 338, 486 N.Y.S.2d 888, 891 (1985) ; See also: People v. Smith, 82 NY2d 676, 601 N.Y.S.2d 466 (1993) In a "post-readiness" posture, however, the People will only be charged with those periods of delay which are solely the result of the People's conduct. See: People v. Anderson, supra.; People v. Cortes, 80 NY2d 201, 590 N.Y.S.2d 9 (1992); People v. Sawh, 58 AD3d 760, 870 N.Y.S.2d 803 (2nd Dept. 2009) The People shall not be charged with periods of delay not of their making and outside their control, i.e. calendar congestion or the convenience of the court. People v. Gross, 87 NY2d 792, 642 N.Y.S.2d 607 (1996); People v. Sebak, 245 AD2d 242, 667 N.Y.S.2d 46 (1st Dept. 1997) lv. den. 91 NY2d 945, 671 N.Y.S.2d 725 (1998); People v. Rivera, 223 AD2d 476, 637 N.Y.S.2d 77 (1st Dept. 1996) lv. den. 88 NY2d 852, 644 N.Y.S.2d 698 (1996)

The issue in the matter before this court revolves around the People's failure to be ready to proceed with the stipulated Mapp/Huntley/Dunaway hearing.on four (4) successive dates. The Defendant is correct in asserting that "[t]he People should not be allowed to stop the time from running against them in such a manner." (Devane Affirmation 9/6/12, ¶ 13) The Defendant, however, confuses the People's declaration of readiness for trial, with being prepared to go forward with the suppression hearing requested by the Defendant. "A pretrial suppression hearing is not the equivalent of a trial and the two serve entirely different purposes (citation omitted)." People v. Chavis, 91 NY2d 500, 505, 673 N.Y.S.2d 29,31 (1998)

In this respect, the matter sub judice is similar to People v. Simpkins, 193 Misc 2d 148, 749 N.Y.S.2d 817 (Crim. Ct. Bronx Co. 2001) aff'd 193 Misc 2d 443, 748 N.Y.S.2d 445 (App. Term 1st Dept. 2002) lv. den. 99 NY2d 585, 755 N.Y.S.2d 721 (2003). In Simpkins, id., the People declared their readiness for trial on June 7, 2000, at which time the court set a schedule for the Defendant's motions. As a result of the Defendant's motions, on August 24, 2000 the court, inter alia, ordered a Mapp/Huntley/Dunaway hearing. On September 22, 2000 the People indicted they were not ready for the full hearing ordered by the court and requested an adjournment to October 4, 2000. The court accommodated the Defendant's request to adjourn the matter to October 11, 2000. The issue therein, as it is before this court, was how much of this adjournment was to be charged to the People.

In allaying the fears of the Defendant herein, that the People would not be charged with any time, due to their failure to be ready to proceed with the suppression hearing, their statement of readiness notwithstanding, the court noted: As defendant correctly observes, the pendency of a suppression motion impedes a trial from commencing. See CPL § 710.40(3); see, e.g., People v. Lloyd, 141 AD2d 669, 529 N.Y.S.2d 801 (2nd Dept.), appeal denied 73 NY2d 787, 536 N.Y.S.2d 747, 533 N.E.2d 677 (1988). Simply put, when the People cannot proceed with an evidentiary hearing on all questions of suppression, they have not done all that is required of them to bring the case to the point where it may be tried.' (See People v. McKenna, 76 NY2d at 64, 556 N.Y.S.2d 514, 555 N.E.2d 911. Accordingly, in contrast to other postreadiness defaults that might delay a trial by affecting a defendant's ability to proceed (see, e.g., People v. Anderson, 66 NY2d at 543, 498 N.Y.S.2d 119, 488 N.E.2d 123 1231], the People's inability to go forward with the hearing on all of the suppression motions was a direct, and virtually insurmountable impediment to the trial's very commencement.' [*5]People v. McKenna, 76 NY2d at 64, 556 N.Y.S.2d 514, 555 N.E.2d 911.

People v. Simpkins, supra. at 153, 749 N.Y.S.2d 817, 822 (Crim. Ct. Bronx Co. 2001) aff'd 193 Misc 2d 443, 748 N.Y.S.2d 445 (App. Term 1st Dept. 2002) lv. den. 99 NY2d 585, 755 N.Y.S.2d 721 (2003). The court then "conclude[d] that the prosecution's inability to complete the suppression hearing on September 22, 2000, led to an adjournment that was the exclusive responsibility of the People and requires the assessment of time for that postreadiness delay. Since the People requested an adjournment until October 4, 2000, they must be charged with twelve days." People v. Simpkins, supra. at 154, 749 N.Y.S.2d 817, 823 (Crim. Ct. Bronx Co. 2001) aff'd 193 Misc 2d 443, 748 N.Y.S.2d 445 (App. Term 1st Dept. 2002) lv. den. 99 NY2d 585, 755 N.Y.S.2d 721 (2003). Once again recognizing the difference between "pre-readiness" and "post-readiness" delays the court correctly reasoned, "[t]he People are chargeable with "postreadiness" delays only when their dilatory conduct is the sole reason for the consumption of the time involved. (citations omitted) When postreadiness delays result from factors outside the People's control, the period involved cannot be charged to them." People v. Simpkins, supra. at 150, 749 N.Y.S.2d 817, 819 (Crim. Ct. Bronx Co. 2001) aff'd 193 Misc 2d 443, 748 N.Y.S.2d 445 (App. Term 1st Dept. 2002) lv. den. 99 NY2d 585, 755 N.Y.S.2d 721 (2003).

Applying these legal principles to the uncontroverted facts herein, the court reaches the following conclusions:

February 24, 2012 to March 28, 2012

On February 24, 2012, the People had not yet announced their readiness for trial and were not ready to proceed with the scheduled suppression hearing. The People requested an adjournment to March 2, 2012; and, the matter was adjourned, for hearing, to March 28, 2012. This being a "pre-readiness" adjournment, the People were to be charged with the entire time of the adjournment. People v. Kendzia, supra.; People v. Chavis, supra.

Following the adjournment, but before the next scheduled date, however, on March 6, 2012 the People filed and served their Certificate of Readiness for trial. [This filing "tolled the speedy trial' clock." People v. Carter, supra. at 796, 676 N.Y.S.2d 523, 524 (1998); see also: People v. Douglas, supra.; People v. Camillo, supra.] Accordingly, the People shall be charged with twelve (12) days for this adjournment.

March 28, 2012 to May 11, 2012

The People were not ready to proceed with the suppression hearing and requested an adjournment to April 4, 2012. The court adjourned the matter to May 11, 2012. As indicated hereinabove, this being a "post-readiness" adjournment, the People will only be charged with the time they requested. Accordingly, the People shall be charged with eight (8) days for this adjournment.

May 11, 2012 to June 14, 2012

The People were not ready to proceed with the suppression hearing and requested an adjournment to May 18, 2012. The court adjourned the matter to June 14, 2012. As indicated hereinabove, this being a "post-readiness" adjournment, the People will only be charged with the time they requested. Accordingly, the People shall be charged with eight (8) days for this adjournment.

June 14 to July 24, 2012

The People were not ready to proceed with the suppression hearing and requested an [*6]adjournment to June 21, 2012. The court adjourned the matter to July 24, 2012. As indicated hereinabove, this being a "post-readiness" adjournment, the People will only be charged with the time they requested. Accordingly, the People shall be charged with eight (8) days for this adjournment.

Based upon all of the foregoing, the People are charged with a total of thirty six (36) days.

Accordingly, the Defendant's motion to dismiss is denied.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

March 11, 2013

ANDREW M. ENGEL

J.D.C. Footnotes

Footnote 1: Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961); People v. Huntely, 15 NY2d 72, 255 N.Y.S.2d 838 (1965) and Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979)