People v Podsadowski

[*1] People v Podsadowski 2015 NY Slip Op 51287(U) Decided on August 24, 2015 Justice Court Of The Town Of Lockport, Niagara County Tilney, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2015
Justice Court of the Town of Lockport, Niagara County

The People of the State of New York, Plaintiff,

against

Casey A. Podsadowski, Defendant.



14070316



Michael J. Violante, Niagara County District Attorney,

By Meghan L. Dobson, for the People

Ann M. Nichols, for the Defendant
Leonard G. Tilney Jr., J.

HISTORY OF CASE

Defendant was arraigned by this Court on July 22, 2014 on various Penal Law and Vehicle and Traffic charges. Defense Counsel appeared August 14, 2014 and the People requested a pretrial to speak with witnesses. The matter was set down for status October 2, 2014 and an additional pretrial was scheduled for October 23, 2014 at which time the Defendant rejected a plea offer and requested a non-jury trial. Because of an anticipatory maternity leave of Defense Counsel, the parties agreed to schedule the trial February 12, 2015. On that date the People requested an adjournment citing law office failure to notify a witness. As is the custom of this Court either side is generally granted one adjournment with the proviso that the Criminal Procedure clock (C.P.L. §30.30) was running. A new trial date was scheduled for April 13, 2015. The People were not ready again, indicating one of their witnesses was incarcerated in Erie County, a fact found out only a week before, and they did not have enough time to request and receive from a Superior Court a transport Order. A second adjournmentwas requested by the People which was denied by the Court and the case was placed on our reserve calendar pursuant to People vs. Douglass, 60 NY2d 194, with a control date of May 12, 2015 for dismissal pursuant to C.P.L. §30.30. In the [*2]interim, the People moved to restore this case to the Court's regular calendar, which was granted. Defendant now moves to dismiss the Penal charge (Criminal Possession of Stolen Property in the Fifth Degree) pursuant to C.P.L. §30.30.

POSITION OF PARTIES

The Defendant claims 136 days are chargeable to the People under Section 30.30 of the Criminal Procedure Law and this time period far exceeds the ninety (90) day statutory time for trial readiness. Therefore, because there is a statutory violation by the People, the Defendant has been deprived of his speedy trial rights.

The People posit that they announced their readiness for trial and but for a few days, well under ninety (90) days, no other time period is chargeable to the People because the Defendant requested or consented to adjournments, did not have counsel or Court calendar issues attributed to the delay.

DECISION

Whether the People have satisfied their C.P.L. §30.30 readiness obligation is generally calculated 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 statutory provisions and then adding to the result any post-readiness periods of delay that are attributable to the People and are ineligible for an inclusion [People v. Cortes, 80 NY2d 302, 208 (1992)].

CPL 30.30(1) sets a statutory time limit of ninety (90) days, where the highest charge is a Class A Misdemeanor, for the People to convey their readiness for trial. Under CPL 30.30, no time can ever be chargeable to the defendant. The statute presumes all time is chargeable to the People unless statutory exceptions [(CPL 30.30(4)] come into play, the defendant consented to any adjournments, or the People are ready for trial.

Defendant met this burden of going forward under CPL Section 30.30 by showing that the People did not answer ready within the applicable time period. The People have the burden to show that certain time periods were excludable from the calculation. People v. Berkowitz, 50 NY2d 333, 428 NYS 2d 927 (1980).

The court may summarily grant or deny the motion if the papers submitted present sufficiently established grounds. People v. Scott, 242 AD2d 478, 552 NYS 2d 476 (1st Dept. 1997); People v. Jones, 187 AD2d 673, 590 NYS 2d 255 (2nd Dept. 1992). If warranted, the court may order a hearing People v. Davis, 184 AD2d 575, 584 NYS 2d 538 (2nd Dept. 1992).

This court does not need a hearing and will decide on papers submitted and the oral argument had thereon. The absolute crux to calculating the time factor for speedy trial revolves around the People's readiness.

This court finds the following time line from the review of its notes, the docket file, the affidavits of counsel and the procedure generally used in the Town Courts of Niagara County, the time line shows:

7/22/14Accusatory Instrument filed and Defendant arraigned without [*3]counsel8/14/14Defense Attorney Appeared — People announced readiness, setpretrial date set 10/2/15.10/2/14People requested additional pretrial conference (complainant/witness — no show) for 10/23/14 — no announcement of readiness.10/23/14People offer plea to charge — Defendant rejects plea - People readiness announced — Non-jury trial scheduled for 2/12/15.10/23/14 to2/12/15Defendant's attorney maternity leave adjournment at her request2/12/15People not ready for trial — office error in notifying witnesses —Non-jury trial rescheduled for 4/13/14.3/7/15 to4/5/15Court unavailable (vacation)4/13/15Non-jury trial rescheduled — People not ready and case placedon reserve calendar.4/22/15People motion to restore to trial calendar.4/23/15Defendant's C.P.L. §30.30 motion.6/20/15Restored case to trial calendar by Court decision.

The mere assertion of readiness without substantiation will not stop the speedy trial clock from ticking [See People vs. Kendzia, People vs. Dean 45 NY2d 651, NYS 2d 353 (1978); People vs. Howe 116 AD2d 990, 498 NYS 2d 1013 (4th Dept.); and People vs. Hargo 144 AD2d 971, 534 NYS 2d (4th Dept. 1988)]. Here, the primary question to be answered is whether or not any ninety (90) day period has expired which can be chargeable to the People.

The Court finds the maximum time period to be 275 days, that is from 7/22/14 to 4/23/15. The Court further finds the following periods not chargeable to the People:

7/22/14Arraignment to 8/14/14 appearance of defense counsel [People vs. Woodward, 219 AD2d 837 (4th Dept. 1995)] — 24 days8/14/14Appearance of defense counsel, People request for pretrial conference with complainant and announcement of readiness to pretrial conference date 10/2/14 to which Defense Counsel [*4]consented for plea purposes [People vs. McKenna, 76 NY2d 59 (1990), and People vs. Felder, 182 AD2d 1065 (4th Dept. 1992)] — 49 days10/23/14Plea offer rejected by Defendant, non-jury trial motion scheduled 2/12/15 — maternity leave for defense counsel [People vs. Whitfield, 265 AD2d 894 (4th Dept. 1999) — 113 days3/7/15 to4/5/15Court unavailability — 30 days4/5/15 to4/13/15Court scheduling — 8 days

The total excludible days are 224 days. The People are chargeable with 51 [FN1]

days, but well within the 90 day statutory time period to announce their readiness for trial, which they did in writing and on the record. Defense motion to dismiss is denied.

Dated: August 24, 2015

___________________________

Hon. Leonard G. Tilney, Jr.

Lockport Town Justice Footnotes

Footnote 1:10/2/14 to 10/23/15 People requested additional pretrial conference with complainant who did not show — no announcement of readiness [People vs. Sibbles, 22 NY3d 1174 (2014)]; 2/12/15 to 3/7/15 People unable to go forward at first non-jury trial date and would need this turnaround time for trial [People vs. Bruno, 300 AD2d 93 (1st Dept. 2002)]; 4/13/15 to 4/22/15 Chargeable to People as witnesses unavailable for second non-jury trial date.