People v James

[*1] People v James 2013 NY Slip Op 52259(U) Decided on August 9, 2013 Supreme Court, Westchester County Molea, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 9, 2013
Supreme Court, Westchester County

The People of the State of New York

against

Shaun James, Defendant.



12-0323



Honorable Janet DiFiore

Westchester County District Attorney

County Courthouse

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, New York 10601

Attn: A.D.A. V. Rashawn Woodley

Office of John F. Ryan, Esq.

The Legal Aid Society

of Westchester County

Attorney for Defendant

One North Broadway, Ninth Floor

White Plains, New York 10601

Attn: Katie D. Wasserman, Esq.

Richard A. Molea, J.

Upon consideration of the defendant's instant motion seeking the dismissal of this indictment due to the alleged violation of his constitutional and statutory right to a speedy trial, the Court has considered the notice of motion, affirmation and reply affirmation and memo of [*2]counsel for the defendant, Katie D. Wasserman, Esq., and the affirmation in opposition and memorandum of law with annexed exhibits of Assistant District Attorney V. Rashawn Woodley.

By Indictment No. 12-0323, the defendant is charged with a single count of Rape in the third degree pursuant to Penal Law § 130.25(2), and a single count of Rape in the third degree pursuant to Penal Law § 130.25(3). In support of these charged crimes, it is alleged that on January 28, 2011 the defendant, while being twenty-one years of age or more, did engage in sexual intercourse with a minor female who was less than seventeen years of age without her consent. By notice of motion, the defendant moves this Court to dismiss the instant indictment due to the prosecution's alleged violation of his statutory right to a speedy trial within the meaning of Criminal Procedure Law (CPL) § 30.30, and his right to a speedy trial within the meaning of the United States Constitution and the New York State Constitution pursuant to CPL § 30.20 . The instant application is resolved as follows:

MOTION TO DISMISS INDICTMENT DUE TO ALLEGED VIOLATION

OF CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

The defense moves the Court to dismiss the instant indictment pursuant to CPL 30.20, alleging in a conclusory manner that the defendant had been denied his constitutional right to a speedy trial. The People oppose the defendant's instant application seeking the dismissal of the instant indictment pursuant to CPL 30.20 without extensive legal argument, arguing that the failure of the defendant to support the instant motion with any factual or legal support compels the summary denial of his constitutional speedy trial challenge.

The applicable standard governing the evaluation of constitutional speedy trial claims based upon the alleged post-accusatory delay to the prompt commencement of a criminal trial proceeding requires consideration of the following factors: (1) the length of the delay, (2) the reason for the delay, (3) the degree of actual prejudice to the defendant, (4) the seriousness of the underlying offense, and (5) the duration of pretrial incarceration (People v Taranovich, 37 NY2d 442, 445; People v Brown, 262 AD2d 419; People v Farner, 234 AD2d 561, 562; People v Quiroz, 192 AD2d 730; People v LaRocca, 172 AD2d 628; People v Rosado, 166 AD2d 544; People v Bryant, 65 AD2d 333, 336).

Turning first to consider the length of the post-accusatory delay incurred, the Court notes that any alleged violation of the defendant's constitutional right to a speedy trial must be measured from August 23, 2011, when the defendant was formally charged in this case upon the filing of a felony complaint with the Ossining Village Justice Court until October 16, 2012, when the People declared their readiness to proceed to trial on the instant indictment, comprising an alleged post-accusatory delay of four hundred and eighteen (418) lapsed days. Despite the lengthy period of post-accusatory delay in this case, the Court recognizes that it is well-settled that the duration of the period of post-accusatory delay, in and of itself, provides an insufficient basis upon which to find that the defendant's constitutional right to a speedy trial had been violated (see People v Vernace, 96 NY2d 886). Indeed, upon consideration of the significance of the length of the delay occasioned prior to the People's declaration of readiness to proceed to trial [*3]in this case, the reviewing court must be mindful that the Court of Appeals has "steadfastly refused to set forth a per se period beyond which a criminal prosecution may not be pursued" (People v Taranovich, supra, at 445). In this regard, the Court is mindful that the primary protection accorded to a criminal defendant against protracted prosecutorial delay is provided by the Legislature through the applicable five-year period established by the statute of limitations set forth in CPL 30.10(2)(b) (see People v Fuller, 57 NY2d 152, 159). Accordingly, as the period of delay between the commencement of this criminal prosecution and the People's declaration of readiness was well within the period prescribed by the Legislature for the commencement of this prosecution, the Court does not find this factor, in and of itself, to be highly persuasive proof of the defendant's alleged violation of his constitutional right to a speedy trial.

Turning next to consider the reasons for the delay incurred, the People have indicated that the lapse of time between the alleged commission of the charged crimes and the commencement of the instant prosecution was not the product of an intentional delay designed to obtain a tactical advantage. Significantly, there is no indication in the defendant's moving papers suggesting that the delay was either "a deliberate attempt by the prosecution to hamper [defendant] in the preparation of his defense" (People v Taranovich, supra, at 446; People v Tomaino, 248 AD2d 944, 945), or that the delay was intentionally incurred by the prosecution in an effort to gain a tactical advantage (People v Jones, 267 AD2d 250, lv. denied 94 NY2d 949). Accordingly, as "there is no reason to conclude that the investigation was not undertaken in good faith" (People v Quiroz, supra, at 730, quoting People v Rosado, supra, at 545; People v Hoff, 110 AD2d 782), the Court does not find this factor to be highly persuasive proof of a violation of the defendant's alleged violation of his constitutional due process right to a speedy trial.

With respect to the degree of actual prejudice suffered by the defendant as a result of the delay occasioned in this case, the Court notes that the defense has neglected to raise any claim of resultant prejudice. In this regard, were this Court to infer a degree of prejudice to the defense, the Court would remain mindful of the well-settled principle that such claims made in the absence of any articulable factual support are insufficient to warrant the dismissal of an indictment (People v Fuller, 57 NY2d 152, 160; People v Brown, 262 AD2d 419, 420; People v Lee, 234 AD2d 140, 143; People v Quiroz, supra, at 730). Accordingly, the Court does not find this factor to be supportive of a violation of the defendant's alleged violation of his constitutional due process right to a speedy trial.

Finally, with regard to the seriousness of the underlying offenses, the defendant stands charged under the instant indictment with the crime of Rape in the third degree based upon the allegation that he engaged in sexual intercourse with a minor female child despite her lack of consent. The Court finds these charges to be of a most serious and heinous nature, as they concern criminal allegations that the defendant sexually assaulted a minor female family member within her own home, despite the child's repeated protestations to him that she did not consent to such sexual activity.

Accordingly, noting the severity of the underlying offenses and the lack of any demonstrable prejudice to the defendant, when considered in conjunction with the other attendant circumstances, leads this Court to find that the delay incurred was not so unreasonable as to establish a violation of the defendant's constitutional right to a speedy trial (People v Taranovich, 37 NY2d 442, 445; People v Farner, 234 AD2d 561, 562; People v Rosado, 166 AD2d 544). [*4]Furthermore, as the issues raised by the defendant in his motion papers were capable of being addressed on the submissions alone, an evidentiary hearing is not required (see CPL 210.45 [5][a]-[b]; cf. People v Townsend, 38 AD2d 569).

Based upon the foregoing, defendant's motion to dismiss the instant indictment due to the alleged violation of his right to a speedy trial pursuant to the United States Constitution and the New York State Constitution is summarily denied.

MOTION TO DISMISS INDICTMENT DUE TO ALLEGED VIOLATION OF

STATUTORY RIGHT TO SPEEDY TRIAL PURSUANT TO CPL 30.30

The defendant moves the Court to dismiss the instant indictment pursuant to CPL 30.30(1)(a), alleging that the People have failed to afford him a speedy trial within the meaning of the statute, and in the alternative, the defendant seeks a pre-trial hearing to address the issues raised through the instant application. The People oppose this branch of the defendant's instant application, arguing that their timely announcement of readiness in this case, upon application of excludable time within the meaning of CPL 30.30(4), compels the summary denial of his statutory speedy trial challenge.

It is well-settled that CPL 30.30(1)(a) mandates that the People declare their present readiness to proceed to trial on a felony charge within six months of the date of the commencement of that criminal action (People v Chavis, 91 NY2d 500, 504). The failure of the People to timely declare their readiness to proceed to trial, within the meaning of CPL 30.30(1)(a), will result in the dismissal of the subject criminal charge(s) unless the People can show that a sufficient period of time is excludable pursuant to CPL 30.30(4)(a)-(j) (see People v Berkowitz, 50 NY2d 333, 349; see also People v Dean, 45 NY2d 651, 659).

Initially, the Court finds that the instant criminal action commenced on August 23, 2011 upon the filing of a felony complaint in the Ossining Village Justice Court which encompassed the conduct which is the subject of the instant indictment (People v Sinistaj, 67 NY2d 236, 239; People v Lomax, 50 NY2d 351). As the speedy trial time period is calculated in terms of calendar months, as opposed to a fixed number of days, the applicable period within which the People were required to declare trial readiness, extending between August 23, 2011 and February 23, 2012, comprised 184 days (People v Cortes, 80 NY2d 201). Here, the Court's records reflect that the People declared their readiness to proceed to trial following the defendant's arraignment under the instant indictment on October 16, 2012, comprising a total of four-hundred and [*5]eighteen (418) days between the date of commencement and the date of declared readiness. Consequently, in order to avoid dismissal of the instant indictment pursuant to CPL 30.30(1)(a), the People must identify at least two-hundred and thirty four (234) days of the total of four-hundred and eighteen (418) lapsed days, which are excludable pursuant to CPL 30.30(4)(a)-(j) in order to avoid the dismissal of the instant indictment.

Through the affirmation submitted in support of the instant application, the defendant has specifically contested the exclusion of the ninety-eight (98) intervening days between the commencement of the instant criminal proceeding on August 23, 2011 and the defendant's arrest and arraignment with counsel before the Ossining Village Court on November 29, 2011, ostensibly due to the failure of the People to exercise due diligence to determine the defendant's location during that period within the meaning of CPL 30.30(4)(c)(i)[FN1]. In this regard, the People submit no opposition to the defendant's specific challenges to the exclusion of the period of time extending between August 23, 2011 and November 29, 2011. Accordingly, as the People have failed to identify an available theory under which any of the intervening days extending between August 23, 2011 and November 29, 2011 were excludable pursuant to the provisions of CPL 30.30(4)(a)-(j), the Court finds that these ninety-eight (98) intervening days between the commencement of the instant criminal proceeding on August 23, 2011 and the defendant's arrest and arraignment with counsel before the Ossining Village Court on November 29, 2011 are not excludable.

Turning next to consider the defendant's challenge to the exclusion of the six (6) intervening days between the date of the People's request for an adjournment of the Preliminary Hearing scheduled for March 6, 2012 in the Ossining Village Justice Court and March 12, 2012 when defense counsel sent the People a letter reflecting the defendant's waiver of CPL 30.30 chargeable time from that date until some unspecified future date while negotiations continued regarding a potential disposition of this case pursuant to the execution of a Superior Court Information (SCI). In this regard, the People submit no opposition to the defendant's specific challenges to the exclusion of the period of time extending between March 6, 2012 and March 12, 2012. Accordingly, as the People have failed to identify an available theory under which any of the intervening days extending between March 6, 2012 and March 12, 2012 were excludable pursuant to the provisions of CPL 30.30(4)(a)-(j), the Court finds that these six (6) intervening days between the date of the People's request for an adjournment of the Preliminary Hearing scheduled for March 6, 2012 and the defense counsel's communication in writing of her waiver of chargeable time on March 12, 2012 are not excludable.

Turning next to consider the defendant's challenge to the exclusion of the seventy (70) intervening days between August 7, 2012, when the defendant purportedly rejected the People's proposed disposition of this case through execution of an SCI, and October 16, 2012, when the People declared their readiness to proceed to trial upon the Court's record immediately following the defendant's arraignment under the instant indictment, the Court notes that same is based upon [*6]the defense claim that their CPL 30.30 waiver which had been memorialized in their letter on March 12, 2012 had expired upon the defendant's rejection of the proposed disposition by execution of an SCI. In this regard, the People submit no opposition to the defendant's specific challenge to the exclusion of the period of time extending between August 7, 2012 and October 16, 2012. Accordingly, as the People have failed to identify an available theory under which any of the intervening days extending between August 7, 2012 and October 16, 2012 were excludable pursuant to the provisions of CPL 30.30(4)(a)-(j), the Court finds that these seventy (70) intervening days between the date of the defendant's rejection of the People's proposed disposition of this case on August 7, 2012 and the People's declaration of readiness to proceed to trial on October 16, 2012 are not excludable.

Finally, turning to consider the defendant's challenge to the exclusion of the twenty-one (21) intervening days between February 7, 2013 and February 28, 2013, the defense alleges that

the People's request for this adjournment while awaiting the completion of the forensic examination of DNA evidence constitutes a period of post-readiness delay attributable to the People. In opposition, the People claim that this 21 day period of time is excludable pursuant to CPL 30.30(4)(g)(i), as the People argue that their previously announced declaration of trial readiness on October 16, 2012 remained viable throughout this period despite their request for this adjournment. Specifically, the People argue that their request for this adjournment was necessitated by the failure of the defendant to submit to the taking of buccal cell samples at any time between November 29, 2012, when he was directed to do so pursuant to the Decision and Order of the Westchester County (Cacace, J.), and January 29, 2013, when he actually submitted to the taking of buccal cell samples from his body. Of significance, by Decision and Order, filed and entered November 29, 2012, Judge Cacace ordered the defendant to submit to the taking of buccal cell samples from his body, providing that defense counsel "be given reasonable advance notice of the time and place where the sample is to be collected and shall be permitted to be present", yet no other constraint was placed upon the conditions or the timing of the taking of the sample (People v James, County Ct., Westchester County, Nov. 29, 2012, Cacace, J., indictment No. 12-0323.

In this regard, the People submit through their affirmation in opposition to the instant motion that ADA Michelle Lopez contacted defendant's attorney, Katie Wasserman, Esq., by some unspecified means on an unspecified date and "left messages" in an effort to make arrangements for the taking of the defendant's buccal cells. Therein the People further submit that Ms. Wasserman contacted ADA Lopez by unspecified means on an unspecified date and stated that she wanted to be present during the taking of the defendant's buccal cells and that she would schedule a time when she and the defendant were available. Additionally, the People submit that at some unspecified time subsequent to the defendant's incarceration in the Westchester County Jail (WCJ) on January 15, 2013, ADA Lopez contacted Ms. Wasserman by some unspecified means to arrange for the taking of the defendant's buccal cells and was advised by Ms. Wasserman that she and the defendant would make themselves available for this procedure on January 18, 2013 at the WCJ. The People further submit that neither the defendant nor Ms. Wasserman were present at the WCJ when an Investigator from the Westchester County District Attorney's Office responded there on January 18, 2013 to take the defendant's buccal cell sample. In addition, the People submit that ADA Lopez sent a letter to Ms. Wasserman on [*7]January 25, 2013, wherein she reminded Ms. Wasserman that the defendant had not yet satisfied his obligation to submit to the taking of buccal cell samples from his body and invited Ms. Wasserman to make herself and the defendant available for that purpose. Thereafter, the defendant submitted to the taking of buccal cell samples from his body after appearing before the Westchester County Court (Cacace, J.) on January 29, 2013, when he was explicitly directed to do so by Judge Cacace following his appearance before her in the Sex Offense Part.

The People argue that the twenty-one (21) day period between February 7, 2013 and February 28, 2013 is excludable pursuant to CPL 30.30(4)(g)(i), which provides that the People shall not be charged with periods of "delay occasioned by exceptional circumstances", including the period of delay resulting from an adjournment requested by the People "because of the unavailability of evidence material to the people's case, when [they] have exercised due diligence to obtain such evidence" which is reasonably likely to become available within a reasonable period. The People submit that the efforts undertaken by ADA Lopez between November 29, 2012 and January 29, 2013 constituted an exercise of due diligence to obtain the DNA evidence which they sought, which could only be obtained after the defendant had submitted to the taking of the court-ordered buccal cell sample. In this regard, it is understood that the People sought the defendant's buccal cell sample in furtherance of their efforts to conduct a forensic examination and comparison of the genetic profile derived from a known sample of the defendant's DNA with the profile derived from various items of DNA bearing material which might be relevant and material to the People's case at trial. Upon consideration of the People's imprecise references to the number, nature and content of the communications initiated by ADA Lopez with defense counsel over the two month period extending between November 29, 2012 and January 29, 2013, which resulted in nothing more than a first attempt to take the defendant's buccal cells on January 15, 2012, the record presented is insufficient, without further development during a hearing, to establish that the communication attempts undertaken by ADA Lopez constitute the diligent pursuit of efforts designed to expeditiously secure the defendant's buccal cell samples within the meaning of CPL 30.30(4)(g)(i).

Despite the inability of the Court to conclusively determine that the twenty-one (21) day period between February 7, 2013 and February 28, 2013 is excludable pursuant to CPL 30.30(4)(g)(i) without the further development of the record at a hearing, the Court finds it unnecessary to rest its inquiry upon the outcome of such a proceeding. Rather, the Court notes that it is well-settled that unlike the analysis applicable to "pre-readiness" delays which are presumptively chargeable to the People pursuant to CPL 30.30, the People will be charged with only those "post-readiness" delays for which they are the exclusive cause (see People v Anderson, 66 NY2d 529, 535; see also People v Pierre, 8 AD3d 201, lv. denied 3 NY3d 710). In this regard, the Court has examined the official stenographic transcript of the proceedings conducted in its presence with respect to this case on February 7, 2013, where it is reflected that ADA Paula Branca-Santos requested a three week adjournment by stating "I will ask for three weeks, Judge", and Ms. Wasserman responded by stating "[t]hat is fine" on behalf of the defendant after the Court indicated that the three week period would extend to February 28, 2013.

Upon consideration of this on-the-record exchange, defense counsel's response to the People's request for this adjournment, when viewed in the context of the entire court proceeding [*8]which included defense counsel's on-the-record explanation for her failure to make the defendant available for the mutually scheduled and agreed upon taking of his buccal cell sample on January 15, 2013, can only be understood to constitute defense counsel's clearly expressed consent to the adjournment sought by the People for the express purpose of awaiting the results of the forensic examination and comparison of the defendant's DNA-bearing buccal cell sample (cf. People v Liotta, 79 NY2d 841)[FN2]. Accordingly, the Court finds that the twenty-one (21) day period between February 7, 2013 and February 28, 2013 is excludable pursuant to CPL 30.30(4)(b) as an adjournment granted by this Court with the clearly expressed consent of the defendant, as the record in this case establishes to the satisfaction of this Court that the People were not exclusively responsible for any of the twenty-one (21) days of post-readiness delay occasioned during this time period (see People v Vaughn, 36 AD3d 434, 535; see also People v Cole, 24 AD3d 1021; People v Rodriguez, 306 AD2d 686; People v Cross, 273 AD2d 702).

Based upon the foregoing, upon applying the total chargeable period of one-hundred and seventy-four (174) days against the one-hundred and eighty-four (184) day period within which the People were required to declare their readiness to proceed to trial in this case, the Court finds that the People have established their compliance with their speedy trial obligation pursuant to CPL 30.30(1)(a). Accordingly, as the record of the proceedings in this matter is sufficient to establish the timeliness of the People's declaration of readiness to proceed to trial on the instant indictment within the statutory period proscribed by CPL 30.30(1)(a), defendant's motion seeking dismissal of the instant indictment due to an alleged violation of his statutory right to a speedy trial within the meaning of CPL 30.30 is summarily denied (see CPL 210.45[5]; see also People v Lomax, supra, at 357-358).

The foregoing shall constitute the Decision and Order of the Court.

Dated: White Plains, New York

August 9, 2013

Honorable Richard A. Molea [*9]

Acting Justice of the Supreme Court Footnotes

Footnote 1:Although defense counsel neglects to identify the statutory subdivision and subsection of CPL 30.30 through which she seeks this Court to consider this branch of her instant application, the Court recognizes that her conclusory claim that "[t]he People will not be able to show due diligence in determining Mr. James's location" is cognizable under only CPL 30.30(4)(c)(i).

Footnote 2: Notably, this Court's determination that defense counsel's response of "[t]hat is fine"to the prosecutor's request for an adjournment constitutes her clearly expressed consent to that request is specific to the facts of this case, which are significantly distinct from those presented in People v Brown (69 AD3d 871), where the Appellate Division, Second Department held that the defense attorney's response of "that's fine" to the trial court's statement that the case would be adjourned until some (unspecified) future date when the parties would be notified by that court did not constitute a clear expression of consent.