People v Veras

[*1] People v Veras 2015 NY Slip Op 51288(U) Decided on August 28, 2015 Criminal Court Of The City Of New York, Bronx County Hornstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2015
Criminal Court of the City of New York, Bronx County

The People of the State of New York

against

Glenn Veras, Defendant.



2015BX000104



For Defendant:

Michael A. Delakas, Esq.

Ateshoglou & Aiello, P.C.

381 Park Avenue South, Suite 701

New York, New York 10016

For the People:

Kenneth M. Calvey, Esq.

Assistant District Attorney

Bronx District Attorney's Office

198 East 161st Street

Bronx, New York 10451
Steven J. Hornstein, J.

By motion, filed June 11, 2015, the defendant moves for dismissal of the instant matter pursuant to CPL § 30.30 (1) (b). The People oppose the motion and claim that they were ready for trial within the statutorily required time period.

To establish a violation under CPL § 30.30, a defendant must demonstrate the existence of a delay in excess of the statutory time period. People v. Santos, 68 NY2d 859, 861 (1986). Upon meeting this burden, the burden shifts to the People to establish that certain periods within that time period should be excluded. People v. Fields, 214 AD2d 332 (1st Dept 1995). The

People also bear the burden of clarifying, on the record, the basis for an adjournment so that a

motion court can determine to whom the adjournment should be charged. People v. Cortes, 80

NY2d 201, 216 (1992); People v. Liotta, 79 NY2d 841, 841 (1992).

Where, as here, the highest count in an accusatory instrument is a class A misdemeanor, the prosecution must be ready for trial within ninety (90) days. CPL § 30.30 (1) (b). The ninety (90) days commences with the filing of the accusatory instrument. CPL § 1.20 (17); see also People v. Stirrup, 91 NY2d 434, 438 (1998). Here, the ninety (90) days commenced on January 2, 2014, the date of the defendant's arraignment.

The People are required to be ready for trial within ninety (90) days of arraignment, less any excludable time. CPL § 30.30 (4). The People are ready for trial when they either communicate their actual readiness in open court or file a certificate of actual readiness and serve a copy on the defendant's attorney. See People v. England, 84 NY2d 1 (1994); People v. Kendzia, 64 NY2d 331 (1985). A statement of readiness for trial is valid when the People have removed all legal impediments to the commencement of their case. People v. England, 84 NY2d at 4.

The defendant asserts that the instant information should be dismissed because one hundred and thirty-eight (138) days of chargeable time has transpired. See defendant's affirmation at ¶ 9. Specifically, the defendant argues that the People should be charged with three time periods: January 23, 2015 to March 19, 2015 (55 days); March 19, 2015 to May 20, 2015 (62 days); and May 20, 2015 to June 10, 2015 (21 days). Id at ¶¶ 4 - 6. The People contend that thirty-three (33) days are chargeable with respect to counts one and three; and thirty-one (31) days are chargeable with respect to counts two and four. In support of their contentions, the People have identified specific exclusions for each time period claimed. See People's affirmation at 6 - 10. The defendant has not challenged, by way of reply, the application of any of the proffered exclusions. See generally People v. Luperon, 85 NY2d 71, 78 (1995); People v. Beasley, 16 NY3d 289, 292 (2011); People v. Quintana, 287 AD2d 269, lv denied 97 NY2d 687 (2001).

The Court, having reviewed the defendant's moving papers, the People's response, and all court documents contained within the court file, concludes as follows:

January 2, 2014 - February 19, 2014

On January 2, 2014 the defendant was arraigned on a misdemeanor complaint charging him with aggravated unlicensed operation of a motor vehicle (Vehicle & Traffic Law [VTL] § 511 [1] [a]); unlicensed operation of a motor vehicle (VTL § 509 [1]); operation of a motor vehicle while intoxicated (VTL § 1192 [3]) and operation of a motor vehicle while impaired (VTL § 1192 [1]). The People announced that they were not ready for trial on the first and third counts of the complaint, the driving with a suspended license counts, because they needed Department of Motor Vehicle (DMV) abstracts; and that they were not ready for trial on the second and fourth counts, the driving while under the influence counts, because they needed a [*2]supporting deposition from informant Captain McCormack. The arraignment court released the defendant on his own recognizance and adjourned the matter to February 19, 2014 for conversion.

On January 8, 2014, the People filed and served a supporting deposition signed by Captain McCormack, a statement of readiness and an affidavit of service with respect to the second and fourth counts of the accusatory instrument, the driving while under the influence counts. On January 10, 2014, the People filed and served DMV abstracts, a statement of readiness and an affidavit of service with respect to the first and third counts, the driving with a suspended license counts.

The Court finds that the service and filing of the supporting deposition and the DMV abstracts converted the complaint to an information and that the notices of readiness were valid. See People v. Smith, 82 NY2d 676, 678 (1993); People v. Kendzia, 64 NY2d 331, 337 (1984) (declaration of present readiness satisfied by written notice served on defense counsel and filed with court); People v. Douglas, 264 AD2d 671 (1st Dept 1999), lv denied 94 NY2d 862 (1999) (off-calendar announcement of readiness satisfies People's CPL § 30.30 obligation and tolls speedy trial clock for remainder of the adjournment period). Accordingly, the People are charged with eight (8) days on counts one and three; and six (6) days on counts two and four.

February 19, 2014 - April 1, 2014

On February 19, 2014 the People advised the court that the requisite supporting deposition and DMV abstracts had been filed off-calendar; the defense requested a motion schedule; a motion schedule was set; and the matter was adjourned to April 1, 2014 for response and decision. This forty-one (41) day period is not chargeable. CPL § 30.30 (4) (a); People v. Khan, 18 NY3d 535 (2012); People v. Worley, 66 NY2d 523 (1985).

April 1, 2014 - May 19, 2014

On April 1, 2014 private counsel filed a notice of appearance; the Legal Aid Society was relieved; a new motion schedule was set; and the matter was adjourned to May19, 2014 for response and decision. This forty-eight (48) day period is not chargeable. Id.

May 19, 2014 - July 2, 2014

On May 19, 2014 the defendant stated that an omnibus motion had been filed, off-calendar, on April 25, 2015. The People stated that they had not received the motion and the court adjourned the matter to July 12, 2014, for response and decision.

In an attempt to determine whether the People had been served with defense motions on April 25, 2015, this Court has reviewed the cover page of the defendant's omnibus motion and [*3]notes that it contains two stamps. One stamp, marked "Civil Court," indicates that the motion was filed with the Civil Court on April 24, 2014 at 10:04 a.m. The second stamp, marked "New York City Criminal Court," indicates that the motion was filed with the Criminal Court on April 25, 2014 at 10:44 a.m. There is no indication that the omnibus motion was served on the Bronx District Attorney's Office. Accordingly, this forty-four (44) day period is not chargeable. Id.

July 2, 2014 - August 20, 2014

On July 2, 2014 the People advised the court that a response to the defendant's omnibus motion had been filed and served, off-calendar, on May 27, 2014. The court adjourned the matter to August 20, 2014 for decision. This forty-nine (49) day period is not chargeable. Id.

August 20, 2014 - October 9, 2014

On August 20, 2014 the court advised the parties that a combined Ingle/Huntley/Mapp/ Dunaway/Refusal hearing had been granted and the matter was adjourned to October 9, 2014 for hearing and trial. This fifty (50) day period is not chargeable. CPL § 30.30 (4) (a); People v. Reed, 19 AD3d 312, 315 (1st Dept 2005), lv denied 5 NY3d 832 (2005); People v. Green, 90 AD2d 705 (1st Dept 1982), lv denied 58 NY2d 784 (1982).

October 9, 2014 - November 20, 2014

On October 9, 2014 the court was advised that the defendant had been rearrested; the People announced that they were ready for trial; and the defense stated that they were not ready. The court stayed a bench warrant and adjourned the matter to November 20, 2014 for hearing and trial. This forty-two (42) day period is not chargeable. CPL § 30.30 (4) (b); CPL § 30.30 (4) (c) (i); see also People v. Benjamin, 292 AD2d 191 (1st Dept 2002); People v. Medina, 198 AD2d 146 (1st Dept 1993), lv denied 83 NY2d 807 (1993).

November 20, 2014 - December 4, 2014

On November 20, 2014 the defense requested an adjournment and the matter was adjourned to December 4, 2014 for hearing and trial. This fourteen (14) day period is not chargeable. CPL § 30.30 (4) (b); see also People v. Ortiz, 295 AD2d 134 (1st Dept 2002).

December 4, 2014 - January 23, 2015

On December 4, 2014 the People and the defense stated they were ready for trial. However, due to the unavailability of a trial part, the matter was adjourned to January 23, 2015. This fifty (50) day period is not chargeable. See People v. Chavis, 91 NY2d 500 (1998).

January 23, 2015 - March 19, 2015

On January 23, 2015 the People stated they were not ready for trial and requested an adjournment to February 10, 2015 because Captain McCormack, a necessary witness, had mandatory training. The court adjourned the matter to March 19, 2015 for hearing and trial. In this post-readiness situation, the People are charged with the eighteen (18) days requested. See People v. Carter, 91 NY2d 795, 799 (1998); People v. Cortes, 80 NY2d 201, 210 (1992); People v. Rivera, 223 AD2d 476 (1st Dept 1996), lv denied 88 NY2d 852 (1996).

March 19, 2015 - May 20, 2015

On March 19, 2015 the People stated they were not ready for trial and requested an adjournment to March 25, 2015 because Captain McCormack, a necessary witness, was again in mandatory training and because Police Officer Perez, a second necessary witness, was on vacation. The Court adjourned the matter for hearing and trial to May 20, 2015. The People

are charged with the six (6) days requested. Id.

May 20, 2015 - June 10, 2015

On May 20, 2015 the People announced that they were not ready due to the unavailability

of a necessary witness, Police Officer Rivera. The People advised the court that the officer had been out due to illness since April 22, 2015; that she was scheduled for an evaluation that day, and that she had previously been on April 29, 2015. The defendant contends that this twenty-one (21) day period should be charged to the People. The People contend that this time period should be excluded as an exceptional circumstance pursuant to CPL § 30.30 (4) (g). Criminal Procedure Law (CPL) § 30.30 (4) (g) provides, in pertinent part:In computing the time within which the people must be ready for trial...the following periods must be excluded:(g) other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are grounds to believe that such evidence will become available in a reasonable period....

To qualify for an exceptional circumstance exclusion, the People must establish that:

(1) material evidence is unavailable due to an "exceptional circumstance"; (2) the People have exercised due diligence to obtain the material evidence; and (3) such evidence will be available within a reasonable period of time. See People v. Anderson, 66 NY2d 529 (1985); People v. Zirpola, 57 NY2d 706 (1982). While "[t]here is no precise definition of what constitutes an exceptional circumstance under CPL § 30.30 (4) (g)" (People v. Smietana, 98 NY2d 336, 341 [2002]), an exceptional circumstance exclusion is applicable only "where the People are truly [*4]unable to take necessary steps to prepare for trial and announce readiness due to circumstances which are beyond their control...." Id.

The unavailability of a witness, including a police witness, due to medical reasons may constitute an exceptional circumstance. See People v. Womack, 229 AD2d 304 (1st Dept 1996), aff'd, 90 NY2d 974 (1997) (unavailability of police witness due to maternity leave excludable); People v. McLeod, 281 AD3d 325 (1st Dept 2001), lv denied 90 NY2d 889 (2001) (officer's disability due to large and cumbersome arm cast constitutes exceptional circumstance); People v. Hernandez, 268 AD2d 344 (1st Dept 2000), lv denied 95 NY2d 853 (2000) (delay caused as a result of officer's broken ankle excluded as exceptional circumstance); People v. Martinez, 268 AD2d 354 (1st Dept 2000) (exceptional circumstance due to officer's neck and back injuries); People v. Celestino, 201 AD2d 91 (1st Dept 1994) (unavailability due to officer's broken leg, even without hospitalization, constitutes exceptional circumstance); People v. De Jesus, 190 AD2d 1012 (4th Dept 1993) (officer's illness constitutes excludable delay); People v. Johnson, 191 AD2d 709 (2d Dept. 1993) (officer's unavailability due to injury sustained in accident excludable); People v. Jones, 31 Misc 3d 1233(A) (Crim Ct, NY County 2011) ("exceptional circumstance" established where officer placed on restricted desk duty); People v. Brathwaite, 28 Misc 3d 1224(A) (Crim Ct, Kings County 2010) (detective's back injury justified exclusion).

Here, the People assert that Officer Perez was unavailable due to recent back surgery. Although an unrefuted representation by the People that a witness is unavailable due to a medical condition constitutes, in and of itself, sufficient proof of medical unavailability (see People v. Alcequier, 15 AD3d 162 [1st Dept 2005], lv denied 4 NY3d 851 [2005]), the People have also provided the Court with a letter, dated May 1, 2015, from a Police Surgeon stating that Officer Perez "can not" "[a]ppear for Court, be Deposed, or Interviewed in an Official Capacity at this time based on their current medical condition." See People's Exhibit 3. The letter further provided "[d]ue to the confidential nature of the member's medical condition further information cannot be provided." Id.

The People's representations, in conjunction with the Police Surgeon's letter, establish that Officer Perez was unavailable due to a medical condition; that the People exercised due diligence by keeping themselves and the Court apprised, to the extent possible, of the expected return date of the officer; and that the People provided the Court with information that the officer would be available within a reasonable time. See People v. Womack, 229 AD2d at 304 - 305; see also People v. Luperon, 196 Misc 2d 154 (Sup Ct, NY County 2003) (police surgeon determination detective not medically fit to testify and placement on "limited capacity duty" constituted "exceptional circumstance").

An exclusion as an "exceptional circumstance" also requires the People to prove that the unavailable evidence constitutes "material" evidence. CPL § 30.30 (4) (g). "Material" evidence has been defined as evidence that is "probative of a fact in issue." See Richardson on Evidence,

§ 4-102 (11th ed 1995); see e.g. People v. Womack, 229 AD2d at 304 (officer's testimony "critical in establishing the chain of custody of crucial physical evidence").

To determine whether evidence is "material," a Court must examine all the relevant facts and circumstances of the particular case. People v. Rodriguez, 8 Misc 3d 1013(A) (Sup Ct, Bronx County 2005). Here, the complaint alleges that Officer Perez was present at the administration of a chemical test analysis of the defendant's breath; that the defendant refused to take the test and that the officer obtained and read a teletype printout that indicated the defendant's license to operate a motor vehicle was suspended or revoked. Moreover, the People allege that "Officer Perez was the IDTU Technician assigned in this matter, making her a necessary and material witness." See People's response at 7. Under these circumstances, the Court finds Officer Perez is a material witness. See e.g. People v. Jones, 31 Misc 3d 1233(A) (officer's observations of defendant and administration of intoxicated driver tests constitutes material evidence).

Based on the foregoing, the Court finds that the People have "met their burden of establishing that the officer was an unavailable material witness, whom they reasonably believed would become available soon, and whom they were diligent in attempting to produce at trial." See People v. Womack, 229 AD2d at 974; cf. People v. Allard, 128 AD2d 1081 (2d Dept 2015).Accordingly, this twenty-one (21) day period is not chargeable to the People.

June 10, 2015 - June 17, 2015

On June 10, 2015 the People announced that they were not ready to proceed to trial and requested June 17, 2015 for trial. The People asserted that they "needed one week to arrange transportation for...Officer...Perez's testimony with her command." See People's response at 10. One day later, on June 11, 2015, the defendant filed a motion to dismiss.

Generally, in a post-readiness situation, the People are charged with the entire time period requested. See People v. Carter, 91 NY2d at 799. Where, however, a defendant files a motion during an otherwise chargeable time period, he stops the speedy trial clock. Accordingly, the People are only charged with the one (1) day that transpired prior to the defendant's filing. See CPL § 30.30 (4) (a); see also People v. Reid, 245 AD2d 44, 44 (1st Dept 1997), lv denied 91 NY2d 1012 (1998).

Conclusion

The Court finds thirty-three (33) days of chargeable time with respect to counts one and three and finds thirty-one (31) days of chargeable time with respect to counts two and four. Accordingly, the defendant's motion to dismiss pursuant to CPL § 30.30 (1) (b) is denied.

This constitutes the decision and order of the Court.

DATED: August 28, 2015

Bronx, New York

Hon. Steven J. Hornstein