People v Reardon

[*1] People v Reardon 2014 NY Slip Op 51672(U) Decided on November 18, 2014 Kinderhook Town Court Dellehunt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 18, 2014
Kinderhook Town Court

People of the State of New York

against

Sandra J. Reardon, Defendant.



XX/14



FOR THE PEOPLE:

PAUL CZAJKA, ESQ.

Columbia County District Attorney

325 Columbia Street, Suite 260

Hudson, New York 12534

By: Shane Zoni, Assistant District Attorney

FOR THE DEFENDANT:

GERSTENZANG, O'HERN, HICKEY, SILLS & GERSTENZANG

Attorneys for the Defendant

210 Great Oaks Boulevard

Albany, New York 12203

By: Thomas J. O'Hern, Esq.
David A. Dellehunt, J.

Defendant, Sandra Reardon, was charged with Driving While Intoxicated in violation of [*2]Vehicle and Traffic Law §1192(3), Speed Not Reasonable and Prudent in violation of Vehicle and Traffic Law §1180(A), Driving Across Hazard Markings in violation of Vehicle and Traffic Law §1128(D), and Failure to Keep Right in violation of Vehicle and Traffic Law §1120(A).The instant matter arose in connection with a one car accident that occurred on October 9, 2011 on County Route 21B North in the Town of Kinderhook. Defendant suffered personal injuries in the accident, was ejected from the driver's seat, knocked unconscious, and had to be airlifted to Albany Medical Center Hospital. The DWI Bill of Particulars alleges that defendant smelled of alcohol, the keys were in the ignition, and alcoholic beverages were found in the vehicle. A blood test taken at the hospital on October 9, 2011 confirmed that defendant had a blood alcohol content of .12 of one per centum by weight of alcohol in her blood. Defendant also allegedly made certain admissions when she regained consciousness in the hospital.

The matter has been lingering on the Court's docket, in large part, because the Columbia County District Attorney's Office is refusing to prosecute the case or allow the defendant's counsel to make motions on behalf of his client. The District Attorney's Office was initially prosecuting the case; they filed a CPL §710.30 notice, announced readiness, indicated an intention to respond to defendant's Omnibus Motion and served a copy of the blood test on both defendant's counsel and the Court. The parties represented to the Court that they were attempting to reach a resolution of the case through the first ten months of 2012, and the omnibus motion was held in abeyance on consent. Thereafter, defendant filed a motion to dismiss in the interests of justice pursuant to CPL §170.40 and, in response to the motion, the District Attorney's Office filed a letter indicating that they "decline to prosecute" the case and suggesting that the motion is, therefore, moot. By reason of the foregoing, defendant immediately withdrew the motion to dismiss.

Defense counsel withdrew all motions at the insistence of the District Attorneys' Office and orally requested a jury trial. The District Attorney's Office reiterated that it was declining to prosecute and would not be participating in a trial. The Court informed the parties that it was ready, willing and able to summon a jury for a trial and would schedule a date certain for a time when both parties are ready to proceed. The District Attorney's Office indicated that they would not be ready to proceed on any assigned date.

The District Attorney, thereafter, moved by letter motion for an order dismissing the instant case on the grounds that he "declines to prosecute". The District Attorney has provided no explanation for his decision not to proceed. Defendant did not submit opposition to the District Attorney's motion, but orally joined in the request for a dismissal. In the alternative, defendant again sought to have the matter scheduled for a jury trial. By Decision and Order dated April 29, 2014 the Court denied the District Attorney's motion. See, People v. Reardon, 43 Misc 3d 1219(A), 2014 NY Slip Op. 50716(U) (2014). Defendant now makes a formal written application for a jury trial.

Although the Court recognizes defendant's constitutional right to a trial before a jury of her peers, the Court is constrained to require that the respective parties communicate their readiness to proceed on the appointed date before assigning a date certain. The prosecution has an obligation to announce readiness either on the record or by filing a statement of readiness with the Clerk of the Court. See, People v. Smith, 82 NY2d 676, 678 (1993); People v. Kendzia, 64 NY2d 331, 337 (1985). Readiness means that the prosecution is in fact ready to proceed. Id. at [*3]337; People v. Brothers, 50 NY2d 413 (1980). To be ready, a prosecutor must have investigated the criminal conduct, gathered needed evidence, be ready to participate in jury selection, be ready to make opening statements, and be ready to call and question witnesses. See, People v. Williams, 146 Misc 2d 866, 871 (1990). A statement of readiness filed at a time when the prosecution is not actually ready for trial is illusory. People v. England, 84 NY2d 1 (1994).

Here the District Attorney's assertion that he is declining to prosecute has negated the statement of readiness filed with the Court. The Court cannot schedule a date certain trial date absent a promise by the parties that they are ready to proceed on the appointed date; to do so would be at great cost, expense and inconvenience to the parties, the jury, and the public, and a waste of judicial resources.

Despite binding precedent to the contrary, the District Attorney's Office continues to argue that the mere utterance of the words "decline to prosecute" deprives the Court of jurisdiction, and relieves the District Attorney's Office from further participating in the case. See, Matter of Donnaruma v. Carter, 41 Misc 3d 195, 969 NYS2d 755, 766 (2013), aff. Matter of Soares v. Carter, 113 AD3d 993, 979 NYS2d 201 (3d Dept. 2014); see also, People v. Cottini, 39 Misc 3d 1237(A), 2013 NY Slip Op. 50912(U) (2013), aff. People v. Cottini, County Court, Columbia County, April 10, 2014, Koweek, J., Index No. 6228/13. The Legislature eliminated the doctrine of nolle prosequi to protect the defendant from double jeopardy and insure that there is not an abuse of power by the District Attorney contrary to the public interest. See, Matter of Soares v. Carter, 113 AD3d at 996, citing People v. Douglass, 60 NY2d 194, 202 (1983). The State Legislature sought to insure that any proposed disposition is above board, appropriate, and on the merits to forestall the commencement of another prosecution at a different time or place deemed more favorable to the prosecution.

The District Attorney's refusal to follow the prescription set forth in the Criminal Procedure Law for the dismissal of cases, coupled with his insistence that the defendant refrain from the same, has placed the defendant in an untenable position. See, People v. McKenna, 76 NY2d 59 (1990); CPL §170.30. It is unclear whether the District Attorney is attempting to advance his agenda of extending the doctrine of nolle prosequi or whether the defendant is the beneficiary of the District Attorney's refusal to prosecute for some other unspoken reason. Regardless, the end result of the District Attorney's refusal to proceed in the instant DWI case, even if within the parameters of his powers, has effectively created a stalemate, to the detriment of the defendant and the interests of the public. Moreover, the District Attorney's continued reliance on the doctrine of nolle prosequi is contrary to the law in the State of New York, advanced in bad faith, and against the manifest public interest. See, Matter of Soares v. Carter, 113 AD3D at 996-997, citing People v. Extale, 18 NY3d 690, 695 (2012); see also, People v. Cottini, 39 Misc 3d 1237(A), 2013 NY Slip Op. 50912(U) (2013), aff. People v. Cottini, County Court, Columbia County, April 10, 2014, Koweek, J., Index No. 6228/13.

In cases where the prosecutor is engaging in conduct that is contrary to the manifest public interest, the Court may seek to request the Governor to supersede the District Attorney by transferring prosecutorial authority over a particular matter to the Attorney General. See, Matter of Soares v. Carter, 113 AD3d at 996-998 citing NY Const., Art. XIII, §13; Executive Law §63(2); see also, Matter of Johnson v. Pataki, 91 NY2d 214 (1997); Matter of Cloke v. Pulver, 243 AD2d 185, 189 (1998). Accordingly, in order to protect the rights of the defendant, the [*4]manifest interests of the public, and the integrity of the justice system in the State of New York, the Court hereby requests that the Governor of the State of New York supersede the Columbia County District Attorney by transferring prosecutorial authority over the instant case to the Office of the Attorney General of the State of New York.

The foregoing shall constitute the Decision and Order of the Court. Defendant is entitled to be present at every stage of the proceedings. Any motions not specifically addressed herein shall be deemed denied.

ENTER.SO ORDERED.

November 18, 2014________________________

Kinderhook, New YorkDavid A. Dellehunt

Kinderhook Town Justice