People v Williams
Annotate this CaseDecided on August 26, 2013
Supreme Court, Bronx County
The People of the State of New York, Plaintiff,
against
Kevin Williams, Defendant.
2012BX017697
Solomon Schepps, Esq.
Counsel for the defendant
Megan Teesdale
Assistant District Attorney
Office of the Bronx District Attorney
Richard L. Price, J.
By motion submitted June 17, 2013, defendant moves to dismiss the charges filed under docket 2012BX017697 pursuant to CPL 30.30 (1) (b) and CPL 170.30 (1) (e). After review of the motion papers, court proceedings, and papers on file with the court, defendant's motion to dismiss is denied.
I. Background and Procedural History
Defendant, Kevin Williams, was arrested on March 22, 2012, and charged with forcible touching (PL 130.52), a class A misdemeanor, and harassment in the second degree (PL 240.26 [1]), a violation, for acts alleged to have occurred on or around March 19, 2012.
On March 23, 2012, an accusatory instrument containing these charges was filed against him. At arraignment, the People announced their readiness to proceed with trial. The Legal Aid Society, defendant's original counsel, then filed an omnibus motion on his behalf. The case was subsequently adjourned to May 10, 2012, for the People to respond, and for the court to render its decision.
On April 1, 2012, The New York State Division of Parole executed a parole warrant, taking him into custody for alleged parole violations.[FN1]
On May 10, 2012, the defendant was not produced in court. At that time, current counsel, Solomon J. Schepps, was assigned, and the Legal Aid Society was relieved. The People filed its [*2]response to defendant's omnibus motion. The court then adjourned the case until July 5, 2012, for the purpose of rendering a decision.
On July 5, 2012, again, the defendant was not produced in court. Also absent was Mr. Schepps. The court rendered its decision on defendant's omnibus motion, ordering a combined pre-trial Wade/Dunaway hearing. The case was then adjourned until September 14, 2012.
On September 14, 2012, the defendant appeared in court on his own recognizance.
Defendant now seeks dismissal of the accusatory instrument on speedy trial grounds pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e), claiming that the People failed to satisfy their obligation to be ready for trial within ninety days of the commencement of the criminal action. Specifically, he contends that the 174-day period between March 23, 2012, when the accusatory instrument was filed, and September 14, 2012, is chargeable to the People because of their failure to produce him in court. The People oppose defendant's motion, arguing that under the circumstances presented, such period is excludable from the speedy trial calculation. This court agrees with the People.
II. Discussion
The People must be ready for trial within ninety days of the commencement of a criminal action where the accusatory instrument charges at least one misdemeanor (see CPL 30.30 [1] [b]). A criminal action is considered "commenced" when the first accusatory instrument is filed (see People v Stirrup, 91 NY2d 434, 438 [1998]). Whether or not the People have satisfied their obligation of readiness is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute (see CPL 30.30 [4], [5]). Added to that calculation are any post-readiness periods of delay actually attributable to the People for which no eligible exclusion exists (see People v Cortes, 80 NY2d 201, 208 [1992]).
Generally, to prevail on a motion to dismiss pursuant to CPL 30.30 (1) (b), a defendant must present sworn allegations of fact that there has been an unexcused delay in excess of the statutory limit (People v Luperon, 85 NY2d 71, 77-78 [1995]; People v Santos, 68 NY2d 859, 861 [1986]; People v Lomax, 50 NY2d 351, 357 [1980]; People v Boyd, 189 AD2d 433, 436 [1st Dept 1993]; see also People v Cortes, 80 NY2d 201, 215-216 [1992]). At the very least, defendant must claim that the People failed to announce their readiness for trial within the statutorily prescribed period (Luperon at 77-78). And, until the People make that initial statement of readiness, all delays are charged entirely to the People absent defendant's consent (pre-readiness delay).
Here, as noted, the action was commenced on March 23, 2012, with the filing of an accusatory instrument charging a class A misdemeanor. At that time, the People announced their readiness to proceed to trial. To be clear, the defendant neither disputes the People's statement of readiness nor claims that they failed to do so within the 90-day statutorily prescribed period. Rather, defendant argues that 174 days are chargeable to the people, beginning with his arraignment on March 23, 2012, and ending on September 14, 2012, when the defendant appeared in court on his own recognizance, because the People failed to produce the defendant in court during his incarceration. [*3]
Once the defendant has shown the existence of a delay beyond the statutory period, which he has, the burden of proving that certain periods should be excluded falls on the District Attorney (People v Kendzia, 64 NY2d 331, 338 [1985]; People v Berkowitz, 50 NY2d 333, 349 [1980]). Where the District Attorney fails to controvert the factual basis for the motion, the motion must be summarily granted (CPL 210.45 [4]; Lomax at 357; Berkowitz at 349; People v Gruden, 42 NY2d 214, 217-218 [1977]). Where a factual dispute exits, a hearing must be granted (Gruden at 217). There being no factual dispute, this court concludes that an evidentiary hearing on the issues presented here is unnecessary.
The People, for their part, assert that the 174-day period between March 23, 2012, and September 14, 2012, constitutes a post-readiness delay because of their statement of readiness made at defendant's March 23 arraignment. Regarding post-readiness delays, periods of time are chargeable to the People only when the delays are solely and exclusively the fault of the prosecution, and the time is not otherwise excludable under CPL 30.30 (4) (see, e.g., People v Anderson, 66 NY2d 529, 535-36 [1985]). As such, the defendant must establish either that the 174-day delay of which he complains was solely attributable to the People or not otherwise excludable.
As noted, the accusatory instrument was filed On March 23, 2012, the date of defendant's arraignment. Aside from the People's statement of readiness, neither the day of arraignment nor the day on which it is made or filed count for speedy trial purposes (People v Stiles, 70 NY2d 765 [1987]). In a post-readiness posture, the People are charged only with the time they specifically request for an adjournment, even if the court sua sponte adjourns the case for a longer period. Here, the People requested no time. The court simply adjourned the case until May 10, 2012.
Moreover, among the purposes of this adjournment was for defense counsel to file a pre-trial omnibus motion, which counsel did. Such adjournments are excludable from any speedy trial calculation pursuant to CPL 30.30 [4] [a] (see CPL 30.30 [4] [a]; see also People v Brown, 99 NY2d 488 [2003]; People v Ailes, 268 AD2d 370 [1st Dept], lv denied 94 NY2d 901 [2000]; People v Greene, 223 AD2d 474 [1st Dept], lv denied 88 NY2d 879 [1996]; People v Green, 90 AD2d 705 [1st Dept], lv denied 58 NY2d 784 [1982]). Accordingly, no time is charged for the period from March 23, 2012, to May 10, 2012.
On May 10, 2012, the People filed their response to defendant's omnibus motion, which was by all accounts an entirely reasonable period of time to do so. The court then adjourned the case until July 5, 2012, for a decision on defendant's motion. The People were not obligated to be ready for trial on July 5 since the law does not require them to be ready on the day the court renders its decision on motions, or adjourns the case for that purpose (see CPL 30.30 [4] [a]; see also Ailes, 268 AD2d at 370; Greene, 223 AD2d at 474; Green, 90 AD2d at 705). Accordingly, no time is charged on either docket for the period from May 10, 2012, to July 5, 2012.
For the same reason, the adjournment period from July 5, 2012, to September 14, 2012, is also excludable. On July 5, 2012, the court rendered its decision on defendant's omnibus motion, which ordered that a combined pre-trial Wade/Dunaway hearing be conducted. The court then adjourned the case until September 14, 2012, for that purpose. As noted above, the People have no obligation to be ready for trial on the day that the court renders its decision on a motion (see CPL 30.30 [4] [a]; see also Ailes at 370; Greene at 474; Green at 705). Moreover, this [*4]adjournment period is also excludable due to counsel's absence on July 5 (see CPL 30.30 [4] [f]; see also People v Mannino, 306 AD2d 157 [1st Dept 2003]; People v Osorio, 294 AD2d 139 [1st Dept], lv denied 98 NY2d 771 [2002]; People v Douglas, 264 AD2d 671 [1st Dept], lv denied 94 NY2d 862 [1999]).
Defendant's entire claim rests on the presumption that solely because the People failed to produce the defendant in court while incarcerated for a parole violation, they must be charged with the entire 174-day period. Such a presumption, however, is unsupported. To be sure, adjournment periods may be charged to the People for failing to produce an incarcerated defendant but it is by no means unconditional. Indeed, an adjournment may be excluded if the People exercise due diligence to locate and attempt to produce a defendant detained within the same jurisdiction (CPL 30.30 [4] [e]; see also People v Anderson, 66 NY2d at 529). Even periods otherwise excludable for motion practice remain so notwithstanding the People's failure to produce a detained defendant (see People v Knight>/I
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