People v Ketterles

[*1] People v Ketterles 2013 NY Slip Op 52081(U) Decided on October 24, 2013 Criminal Court of the City of New York, Kings County Laporte, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 24, 2013
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Ali Ketterles, Defendant.



2012KN072055



Nadely Bataille

Assistant District Attorney

Kings County District Attorney's Office

350 Jay Street

Brooklyn, NY 11201

(718) 250-5291

Defendant Duran was represented by

Adrian Lesher, Esq.

Legal Aid Society

111 Livingston St.

Brooklyn, NY 11201

(718) 243-6219

Evelyn J. Laporte, J.

Defendant, ALI KETTERLES, is charged with one count each of Assault in the Third Degree (P.L. § 120.00 [1]); Attempted Assault in the Third Degree (P.L. § 110/120.00 [1]); Menacing in the Third Degree (P.L. § 120.15); and one count of Harassment in the Second Degree (P.L. § 240.26 [1]). He moves to dismiss the accusatory instrument pursuant to C.P.L. § 30.30 on the grounds that he has been denied his statutory right to a speedy trial because the People have failed to file a facially insufficient accusatory instrument. The People oppose the motion.

[*2]FACIAL SUFFICIENCY

OF THE ACCUSATORY INSTRUMENTS

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. (C.P.L. §§ 100.15 [3]; 100.40 [1] [b]; 70.10.) These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses. (C.P.L. § 100.40 [1] [c].) An information which fails to satisfy these requirements is jurisdictionally defective. (C.P.L. §§ 170.30 and 170.35; People v. Alejandro, 70 NY2d 133 [1987]; People v. Dumas, 68 NY2d 729 [1986].) It is a fundamental principle that an information must allege each and every element of the offense charged. People v. Butt, 153 Misc 2d 751 (Crim. Ct. Kings Co. 1992).

ORIGINAL COMPLAINT

The defendant was arrested on August 28, 2012 and arraigned on August 29, 2012. The original complaint charged the defendant with Assault in the Third Degree (P.L. § 120.00 [1]); Attempted Assault in the Third Degree (P.L. § 110/120.00 [1]); Menacing in the Third Degree (P.L. § 120.15); and one count of Harassment in the Second Degree (P.L. § 240.26 [1]) and reads as follows:

[Detective Steven G. Sneider of the 79th Precinct] is informed by Latosha Smith-Ketterles that, [on or about August 11, 2012 at approximately 1:30 a.m. at 685 Gates Avenue in Kings County, New York State], the defendant punched the informant numerous times about the face.

The deponent is further informed by the informant that the above described actions caused the informant to suffer bruising, swelling, pain and a laceration to the informant's lip and to be treated at a local hospital, to suffer substantial pain, to fear further physical injury and to become alarmed and annoyed.

This original complaint was sworn to and signed by the deponent, Detective Sneider on August 28, 2012.

The factual information contained in the original complaint was provided by an informant, Lathosha Smith-Ketterles. Because this factual information did not come directly from the sworn deponent, it is hearsay and requires corroboration from Lathosha Smith-Ketterles by way of a supporting deposition. The People can not legally assert readiness until such time that the People have a jurisdictionally sufficient accusatory instrument which does not contain hearsay. (People v. Colon, 59 NY2d 921 [1983]).

To this date, the People never provided a supporting deposition from the informant for the original complaint. Therefore, it was never converted to a jurisdictionally sufficient accusatory instrument.

SECOND ACCUSATORY INSTRUMENT

On September 10, 2012, the People filed and served a superseding complaint (hereinafter, "SSI-1") charging Attempted Assault in the Third Degree (P.L. § 110/120.00 [1]); Menacing in the Third Degree (P.L. § 120.15); and one count of Harassment in the Second [*3]Degree (P.L. § 240.26 [1]). "SSI-1"reads as follows:

[Police Officer Jeanmarc Denis of the 79th Precinct] states that at approximately 1:37 AM, Deponent received a radio run of an assault in progress at 685 Gates Avenue, County of Kings, State of New York and arrived at the above location at approximately 01:40 AM.

Deponent further states that upon arrival, at the approximate above time and place, Deponent observed a woman, whom Deponent later learned to be Latosha Smith-Ketterles, visibly shaking, crying, upset and bleeding from the mouth, and that Latosha Smith-Ketterles stated to deponent "my husband beat me up, he punched me".

Deponent further states that deponent observed Latosha Smith-Ketterles with swelling and a laceration to the lip, and a bloody mouth.

"SSI-1" was sworn to and signed by Police Officer Denis on September 4, 2012.

To be sufficient on its face, an information must provide reasonable cause to believe that the defendant committed the offense, and the non-hearsay allegations must establish, if true, every element of the offense charged (see, People v. McNamara, 78 NY2d 626, 629 [1991], citing CPL § 100.40[1][b],[c]; People v. Alejandro, 70 NY2d 133, 136-137 [1987]). Mere conclusory allegations are insufficient (see, People v. Dumas, 68 NY2d 729 [1986]) and a purported information which fails to meet these requirements is fatally defective (see, People v. Alejandro, supra at 136). An information should be given a non-technical reading so long as it gives the defendant sufficient notice to prepare a defense and will prevent him from being tried twice for the same crime (see, People v. Casey, 95 NY2d 354, 360 [2000]).

"SSI-1" asks the court to presume that the informant is married to the defendant and therefore, the defendant is the person who struck her. But there is no actual mention of the complainant's connection to the defendant, or the defendant's connection to any crime in this instrument. The only clue that the informant might be related to the defendant is that she shares his last name — "Ketterles". But assuming that this means that Ali Ketterles is the person who struck the informant requires the court to rule out the possibility that the defendant is her brother, brother-in-law, father, some other relative, or merely a person who happens to share the same last name. While the People have inserted an additional description of the informant's apparent mental state in this instrument, they have provided nothing in the factual portion of the complaint which allows the court to presume that the defendant, Ali Ketterles, committed the alleged offenses without the use of conjecture and supposition. Therefore this accusatory instrument is facially insufficient.

Moreover, a review of the court file and the transcripts of all of the proceedings which followed the filing of "SSI-1" reveal that the defendant was never arraigned on "SSI-1". Under CPL § 100.50 (1) (2) defendant must be arraigned on a superseding complaint in order for it to legally replace original complaint. The CPL § 170.10 requirement that the court arraign defendants on the superseding accusatory instruments is mandatory, not discretionary. People v. Goss, 87 NY2d 792 (1996).

Therefore, the filing of "SSI-1" did not replace the original complaint in this matter.

THIRD ACCUSATORY INSTRUMENT

The court file also contains an additional accusatory instrument (hereinafter, "SSI 2") that bears the title "SSI: 2012KN072055" and was sworn to and signed by Police Officer Denis on September 4, 2013. That document reads as follows:

Deponent [Police Officer Jeanmarc Denis of the 79th Precinct] states that at approximately 1:37 AM, Deponent received a radio run of an assault in progress at 685 Gates Avenue, County of Kings, State of New York and arrived at the above location at approximately 01:40 AM.

Deponent further states that upon arrival, at the approximate above time and place, Deponent observed a woman, whom Deponent later learned to be Latosha Smith-Ketterles, visibly shaking, crying, short of breath, upset and bleeding from the mouth, and that Latosha Smith-Ketterles stated to deponent my husband beat me up, he punched me.

Deponent further states that while Latosha Smith-Ketterles was visibly shaking, crying, short of breath, upset and bleeding from the mouth, Latosha Smith-Ketterles stated in sum and substance that Latosha Smith-Ketterles was in a cab on the way from her husband's house to Latosha Smith-Ketterles's house and her husband repeatedly punched her.

Deponent further states that deponent observed Latosha Smith-Ketterles with swelling and a laceration to the lip, and a bloody mouth.

Once again "SSI-2" has provided nothing in the factual portion of the complaint which allows the court to presume that the defendant Ali Ketterles committed the alleged offenses without the use of conjecture and supposition. This third complainant is based solely upon conclusions and therefore fails to achieve facial sufficiency.

Most importantly, the court record show that the defendant was not arraigned on this superseding accusatory instrument either. Therefore, the original complaint still controls the speedy trial calculations in this matter. See, CPL §§ 100.50 (1) (2); 170.10; People v. Goss, supra.

CALCULATION OF SPEEDY TRIAL TIME

Under C.P.L. § 30.30 (1) (b) the People must be ready for trial within ninety (90) days from the commencement of a criminal action where the defendant is charged with one or more offenses, at least one of which is an A Misdemeanor or Unclassified Misdemeanor punishable by no more than one (1) year in jail. Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. People v. Fields, 214 AD2d 332 (1995); People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980). The original complaint contained the A misdemeanor charge of the Assault in the Third Degree (P.L. § 120.00 [1]).

CALCULATION OF TIME CHARGED UNDER CPL § 30.30

The instant action commenced with the defendant's arraignment on August 29, 2012. For purposes of the computation of the applicable speedy trial time, the day on which the accusatory [*4]instrument is filed is excluded. People v. Stiles, 70 NY2d 765 (1987). Accordingly, August 30, 2012 constitutes day one (1) of the ninety (90) day period applicable to the instant charges.

On August 29, 2012 the case was adjourned to August 31, 2012 for the People to file a supporting deposition. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. (People v. Colon, 59 NY2d 921 [1983]). 1 day is chargeable during this adjournment.

On August 31, 2012 the People were not ready and the defendant was not produced. The case was adjourned to November 5, 2012 for conversion. The People filed and served a superseding complaint ("SSI-1") along with a statement of readiness off calendar on September 10, 2012. However, as noted above, this document was not an information in that it did not identify the defendant as someone who had committed any offense. Moreover, the defendant was never arraigned on "SSI-1". Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. (People v. Colon, 59 NY2d 921 [1983]). Thus, the period following the filing of the statement of readiness and the November 5, 2012 appearance is includable. Therefore, 66 days are chargeable to the People.

On November 5, 2012 the People answered ready and the case was adjourned to November 15, 2012 for Discovery by Stipulation ("DBS"). It is noted that because DBS is regarded as a courtesy provided to the defendant in lieu of motion practice and discovery practice in Kings County, the adjournment is excludable under CPL § 30.30 (4) (a) "irrespective of the People's readiness". People v. Khachiyan, 194 Misc 2d 161 (Crim. Ct., Kings Co., 2002). See, also, People v. Wilson, 2010 NY Slip Op 20136, Crim. Ct., Kings Co.; People v. Dorilas, 19 Misc 3d 75 (2008); People v. Sai, 223 AD2d 439 (1st Dep't, 1996); People v. Burton, 133 Misc 2d 701 (Crim. Ct. NY County 1986); C.P.L. § 30.30 (4)(a). 0 days included.

On November 15, 2012 the People filed DBS and the case was adjourned to November 27, 2012 for hearing and trial. The People are entitled to a reasonable adjournment for witness procurement and trial preparation. What constitutes Areasonable@ should be determined on a case by case basis, depending on the complexity of the issues and the number of necessarywitnesses. In general, an adjournment of two weeks has been held reasonable. This is up to the discretion of the court. People v. Stirrup, supra; People v. Kendzia, 64 NY2d 331 (1985). 0 days chargeable.

On November 27, 2012 the People were not ready for trial. The People requested a two-week adjournment for trial. The court adjourned the case to December 12, 2012 for trial. Generally, the People are chargeable only with the number of days requested, provided an announcement of readiness was previously made. (See, People v. Smith, 82 NY2d 676 [1993]; People v. Dushain, 247 AD2d 234 [1st Dept 1998], lv denied, 91 NY2d 1007 [1998]; People v. Rivera, 223 AD2d 476 [1st Dept], lv denied, 88 NY2d 852 [1996]; People v. Urraea, 214 AD2d 378 [1st Dept 1995]; People ex rel Sykes v. Mitchell, 184 AD2d 466 [1st Dept 1992]). However, that calculation only applies when the People have previously given a valid statement of readiness. As previously discussed, effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 15 days are included.

On December 12, 2012 the People were not ready for trial because the assigned ADA had a death in the family. The People requested a two-week adjournment for trial. The court adjourned the case to January 7, 2013 for trial. However, the People did not have a jurisdictionally sufficient accusatory instrument. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 26 days are included. [*5]

On January 7, 2013 the People were not ready because it was the arresting officer's Regular Day Off ("RDO"). The People requested a three-day adjournment. The court adjourned the case to February 13, 2013 for trial and directed the People to file a statement of readiness off-calendar once they were prepared to proceed to trial. The People filed a certificate of readiness off calendar on January 18, 2013 . However, as discussed above, the People did not have a jurisdictionally sufficient accusatory instrument. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 37 days are included.

On February 13, 2013 the People answered ready, but the defendant was not ready to proceed, so the case was adjourned to February 25, 2013 for trial. However, as discussed above, the People did not have a jurisdictionally sufficient accusatory instrument. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 12 days are included..

On February 25, 2013 the People were not ready because it was the arresting officer's Regular Day Off ("RDO"). The People requested March 4, 2013 for trial. However, as discussed above, the People did not have a jurisdictionally sufficient accusatory instrument. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 8 days are included..

On March 4, 2013 the People were not ready because the assigned ADA was out of the office with District Attorney Hynes. The People requested March 11, 2013 for trial. The court adjourned the case to March 12, 2013. However, as discussed above, the People did not have a jurisdictionally sufficient accusatory instrument. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 8 days are included.

On March 12, 2013 the People were not ready because the arresting officer was out of the country for an extradition. The People requested March 20, 2013 for trial. However, the People did not have a jurisdictionally sufficient accusatory instrument. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 8 days are included.

On March 20, 2013 the People answered ready for trial. Defense counsel was not ready because he was awaiting the transcript of the defendant's parole hearing. However, as discussed above, the People did not have a jurisdictionally sufficient accusatory instrument. Therefore, this court can not legally credit their statement of readiness. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 15 days are included.

On April 4, 2013 the People answered ready for trial. Defense counsel was not ready because he was awaiting the transcript of the defendant's parole hearing. The case was adjourned to April 9, 2013 for trial. However, the People did not have a jurisdictionally sufficient accusatory instrument. Therefore, this court can not legally credit their statement of readiness. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 5 days are included.

On April 9, 2013 the People were not ready because it was their police witness was unavailable. The People requested April 11, 2013 for trial. The court adjourned the case to April 15, 2013. The People did not have a jurisdictionally sufficient accusatory instrument. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 6 days are included..

On April 15, 2013 the People answered ready for trial. Defense counsel was not ready. The case was adjourned to April 23, 2013 for trial. However, the People did not have a jurisdictionally sufficient accusatory instrument. Therefore, this court can not legally credit their statement of readiness. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 8 days are included. [*6]

On April 23, 2013 the People were not ready because it was the arresting officer's was out of the country for an extradition. The People requested April 24, 2013 for trial. The court adjourned the case to April 30, 2013 as requested by the People. However, the People did not have a jurisdictionally sufficient accusatory instrument. Therefore, this court can not legally credit their statement of readiness. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 7 days are included.

On April 30, 2013 the People answered ready for trial. Defense counsel was not in court as he was engaged in another matter. The case was adjourned to May 8, 2013 for trial. However, the People did not have a jurisdictionally sufficient accusatory instrument. Therefore, this court can not legally credit their statement of readiness. (People v. Colon, supra). Thus, the People are charged with this entire adjournment 8 days included.

On May 8, 2013 the People answered ready for trial. The case was adjourned to May 15, 2013 for trial. However, the People did not have a jurisdictionally sufficient accusatory instrument. Therefore, this court can not legally credit their statement of readiness. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 7 days are included.

On May 15, 2013 the People answered ready for trial. The case was adjourned to May 23, 2013 for trial. However, the People did not have a jurisdictionally sufficient accusatory instrument. Therefore, this court can not legally credit their statement of readiness. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 8 days are included.

On May 23, 2013 the People answered ready for trial. Defense counsel was not in court. The case was adjourned to June 6, 2013 for trial. However, the People did not have a jurisdictionally sufficient accusatory instrument. Therefore, this court can not legally credit their statement of readiness. (People v. Colon, supra). Thus, the People are charged with this entire adjournment. 26 days included.

On June 6, 2013 the People answered ready for trial. Defense counsel asked for leave to make a motion to dismiss for facial insufficiency. The case was adjournedfor motion practice. This entire period, to date, is excludable. People v. Burton, 133 Misc 2d 701 (Crim. Ct. NY County 1986) (court found period during which a case was adjourned for defense motions was excludable in computation of statutory speedy trial time); People v. Sai, 223 AD2d 439 (1st Dept 1996) (court found that time requested by defense counsel to submit motions is excludable from speedy trial calculations). C.P.L. § 30.30 (4) (a). 0 days included.

In this matter, the People never appeared before this court with a jurisdictionally sufficient accusatory instrument against the defendant. Without such a valid and facially sufficient accusatory instrument, the People can not answer ready for trial in good faith. (People v. Colon, 59 NY2d 921 [1983]). Hence, the only excludable court adjournments here are the periods during which and accommodation was made for the defendant. This only occurred for DBS and on the date the counsel requested leave to make the instant motion.

CONCLUSION

Based on the foregoing, in total, the People are charged with 279 days of includable delay since the commencement of the action on August 29, 2012. Since more than 90 days of chargeable time has elapsed, Defendant's motion to dismiss, pursuant to C.P.L. § 30.30, is granted.

The foregoing is the decision and the order of the court. [*7]

_________________________________

Dated: October 24, 2013EVELYN J. LAPORTE

Brooklyn, New York Judge of the Criminal Court