People v Jordan
Annotate this CaseDecided on August 26, 2015
Criminal Court of the City of New York, Bronx County
The People of the State of New York,
against
Vance Jordan, Defendant.
2014BX057655
The People — Robert T. Johnson, District Attorney, Bronx County by Ray Serina, Assistant District Attorney
Defendant — Mortimer A. Lawrence
Mary V. Rosado, J.
Defendant is charged with count one, Criminal Mischief in the Fourth Degree (Penal Law § 145.00 [3]); count two, Driving While Intoxicated (Vehicle and Traffic Law § 1192 [3]); count three, Leaving the Scene of an Incident without Reporting (Vehicle and Traffic Law § 600 [1] [a]); and count four, Driving while Ability Impaired (Vehicle and Traffic Law § 1192 [1]). By Affirmation dated June 4, 2015, Defendant moves for dismissal of all charges on speedy trial ground pursuant to CPL § 30.30 (1). By Affirmation in Opposition dated July 6, 2015, the People oppose dismissal of the charges of Driving while Intoxicated and Driving while Ability Impaired.[FN1]
In rendering a decision, this Court has reviewed Defendant's Affirmation dated June 4, 2015, the People's Affirmation in Opposition dated July 6, 2015, the court file, and relevant statutes and case law.
Defendant's motion to dismiss is granted as to the charges of Criminal Mischief in the Fourth Degree and Leaving the Scene of an Incident without Reporting, but denied as to Driving while Intoxicated and Driving while Ability Impaired.
CPL § 30.30
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Criminal Procedure Law § 30.30 (1) requires the People to be ready for trial within a certain period of time. Time begins to run upon commencement of a criminal action. Commencement occurs when an accusatory instrument is filed (CPL § 1.20 [17]). Defendant was arraigned by a misdemeanor complaint on October 26, 2014. The top charge of the accusatory instrument is Criminal Mischief in the Fourth Degree, a class A misdemeanor. Therefore, the People must be ready for trial within ninety (90) days of the commencement of the criminal action (See CPL § 30.30 [1] [b]). The People are considered ready for trial when (1) there is no legal impediment to trying the People's case; and (2) they communicate their [*2]actual readiness in open court or file a certificate of actual readiness and serve a copy on the defendant's attorney (People v Kendzia, 64 NY2d 331 [1985]).
A defendant's speedy trial motion need only include sworn allegations that there has been unexcused delay in excess of the statutory time period. The burden then shifts to the People to show that specific periods should be excluded (People v Santos, 68 NY2d 859, 861 [1986]). Based on the sworn allegations of each party, as well as an examination of the court file, mindful that the record made by the court at the time of adjournment is not conclusive as to how much time is chargeable (People v Berkowitz, 50 NY2d 333, at 348-349 [1980]), this Court rules accordingly.
Calculation of CPL §30.30 Time
October 26, 2014 to October 31, 2014
On October 26, 2014, Defendant was arraigned on a misdemeanor complaint before Honorable Shawn Kelly on the charges of Penal Law § 145.00 (3) and Vehicle and Traffic Law §§ 1192 (3), 1192 (1), and 600 (1) (a). The action commenced on this date. The People stated ready on counts two and four. The case was adjourned to October 31, 2014 in Part AP2 for a hardship hearing and full conversion of counts one and three. Adjournments for proceedings concerning a defendant are excludable CPL § 30.30 (4) (a). Zero (0) days are chargeable to the People for counts two and four.
This exclusionary period cannot be applied to the unconverted counts. In pre-readiness situations, the People are charged for the entire period of delay unless an exclusionary period, under CPL § 30.30 (4), impedes their ability to be ready for trial (People v Correa, 77 NY2d 930 [1991]). Counts one and three were unconverted because the misdemeanor complaint lacked a supporting deposition signed by the informant. An unconverted misdemeanor complaint is a jurisdictional defect that prevents the People from being ready for trial (People v Colon, 59 NY2d 921 [1983]). An adjournment for Defendant's hardship hearing did not affect the People's ability to convert counts one and three. Five (5) days are chargeable to the People for counts one and three.
October 31, 2014 to November 3, 2014
On October 31, 2014, the parties appeared before Honorable Mary V. Rosado. No parts were available to conduct a hardship hearing. The matter was adjourned to November 3, 2014 in Part AP2 for a hardship hearing. Post-readiness delays due to court congestion are not chargeable to the people (People v Goss, 87 NY2d 792 [1996]). Zero (0) days are chargeable to the People for counts two and four.
Court scheduling does not affect the People's ability to convert a misdemeanor complaint. Alternatively, when the People are not ready, delays attributed to court congestion are fully chargeable (People v Brothers, 50 NY2d 413 [1980]). Three (3) days are chargeable to the People for counts one and three.
November 3, 2014 to November 21, 2014
On November 3, 2014, the parties appeared before Honorable Kim Wilson. The matter [*3]was transferred forthwith to TP1 for a hardship hearing. Honorable David Stadtmauer granted a hardship exception to Defendant. The case was adjourned to November 21, 2014 in Part AP2 for conversion of counts one and three. Zero (0) days are chargeable to the People for counts two and four. The adjournment for conversion did not affect the People's ability to convert counts one and three. Eighteen (18) days are chargeable to the People for counts one and three.
November 21, 2014 to January 13, 2015
On November 21, 2014, the parties appeared before Honorable Carol Sharpe. Defendant filed an off-calendar omnibus motion dated November 10, 2014. The court set a motion schedule and the case was adjourned to January 13, 2015 in Part AP2 for decision. Adjournments for motion practice are excludable pursuant to CPL § 30.30 (4) (a). Zero (0) days are chargeable to the People for counts two and four. Defendant's motion did not affect the People's ability to convert counts one and three. Fifty-three (53) days are chargeable to the People for counts one and three.
January 13, 2015 to February 19, 2015
On January 13, 2015, the parties appeared before Honorable Carol Sharpe. The court granted Mapp, Dunaway, Huntley, Wade and refusal hearings. The matter was adjourned to February 19, 2015 in Part VCQ for hearings and trial. The People are afforded a reasonable amount of time to prepare for hearings or trial granted by the court (CPL § 30.30 [4] [a]; People v Reed, 19 AD3d 312 [1st Dept 2005]). Zero (0) days are chargeable to the People for counts two and four. The adjournment did not affect the People's ability to convert counts one and three. Thirty-seven (37) days are chargeable to the People for counts one and three.
February 19, 2015 to April 22, 2015
On February 19, 2015, the parties appeared before Honorable Robert Seewald. The People were unable to produce the arresting officer for the hearings. Periods of delay, caused by exceptional circumstances, are excludable from the computation of time within which the People must be ready for trial. An exceptional circumstance exclusion is as follows:
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 reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people's case and additional time is justified by the exceptional circumstances of the case (CPL § 30.30 [4] [g])."There is no precise definition of what constitutes an exceptional circumstance under CPL § 30.30 (4) (g). The Legislature enacted this catchall provision because it could not anticipate every situation that might warrant tolling of the speedy trial time period" (People v Smietana, 98 [*4]NY2d 336, 341 [2002]). The unavailability of the People's witness may be legitimate grounds for claiming an exclusionary period under CPL § 30.30 (4) (g) (People v Zirpola, 57 NY2d 706, 708 [1982]; People v Elijah, 272 AD2d 273, 273 [1st Dept 2000]). An arresting officer's participation in military leave is an exceptional circumstance so long as the People exert due diligence in attempting to obtain the officer's availability (People v Rodriguez, 8 Misc 3d 1013(A) [Sup Ct, Bronx County 2005]; People v Thompson, 118 AD3d 922, 923 [2d Dept 2014]; People v Williams, 293 AD2d 557, 557-58 [2d Dept 2002]).
Police Officer Massiel Pages (hereinafter "Officer Pages"), the arresting officer, is a member of the New York Air National Guard. Appearing before the court on February 19, 2015, the People claimed that Officer Pages would be deployed in Texas for training until June 23, 2015. They further asserted that Officer Pages would not be able to leave the training site, nor have the ability to communicate with others during the pendency of her military training. A letter from Renae Turner, a Master Sergeant of the New York Air National Guard confirmed that Officer Pages was participating in training in Texas from February 17, 2015 to June 23, 2015 (People's Affirmation in Opposition, Exhibit A Memorandum for Employer).
Defendant argues that the People are not entitled to the exclusionary period under CPL § 30.30 (4) (g) because the People could have conducted the evidentiary hearings with evidence from other sources such as Officer Pages' partner, the IDTU officer, the witness to the accident, the video camera technician, or Officer Pages' remotely-obtained testimony (Defendant's Motion at ¶ 3). His argument about hypothetical, alternative sources of Officer Pages' anticipated testimony misinterprets the parameters of CPL § 30.30 (4) (g). Evidence need only be material to the People's case, and not necessary. Defendant is charged with violations of Vehicle and Traffic Law §§ 1192 (1) and (3). As the arresting officer, Officer Pages' testimony is critical to the People's case in the evidentiary hearings. The Mapp, Huntley and Dunaway hearings require an inquiry into the lawfulness of Defendant's seizure. Therefore, the testimony of the arresting officer, who conducted Defendant's arrest, would be the focal point of the People's presentation. Furthermore, an identification of Defendant was made to Officer Pages. She would be an anticipated witness at the Wade hearing regarding the propriety of the identification procedures. Even if the content of Officer Pages' testimony could be derived from other sources, that does not diminish the materiality of her testimony for purposes of CPL § 30.30 (4) (g) (Rodriguez, supra).
This court disagrees with Defendant's argument that the present case is analogous to People v Betka (45 Misc 3d 883 [Crim Ct, Queens County 2014). In Betka, that court found that the People failed to exercise due diligence in procuring their witness for trial. The People's witness was taken into Immigration and Customs Enforcement custody seventeen days before trial. Subsequently, the witness was released at some point before trial. The People never made an attempt to contact the witness while he was in custody even though there were avenues for communication and temporary release for purposes of aiding state criminal prosecutions. Even after the witness was released, the People did not file a certificate of readiness.
Conversely, in the instant matter, the People exercised due diligence in attempting to obtain the availability of Officer Pages. The People spoke to Officer Pages' precinct and was informed that she was on military leave. Then, the People contacted a Master Sergeant at the [*5]New York Air Guard who informed them that Officer Pages was stationed in Texas until June 23, 2015, and that Officer Pages would not be able to leave the base, nor communicate by telephone until the completion of her training. Even so, the People unsuccessfully attempted to contact Officer Pages by telephone.
Finally, the People have provided reasonable grounds to believe that the witness would become available within a reasonable amount of time. The witness was anticipated to be available after June 23, 2015, the date of her graduation from basic and specialized training.
The case was adjourned to April 22, 2015 in Part VCQ for a status update on Officer Pages' availability. Officer Pages' unavailability is an exceptional circumstance pursuant to CPL § 30.30 (4) (g). Zero (0) days are chargeable to the People for counts two and four. The witness' unavailability did not affect the People's ability to convert counts one and three. Sixty-two (62) days are chargeable to the People for counts one and three.
April 22, 2015 to May 20, 2015
On April 22, 2015, the parties appeared before Honorable Robert Seewald. The People claimed an excludable adjournment due to the continued unavailability of Officer Pages. Defendant expressed his intention to file the present motion to dismiss based on CPL § 30.30. The case was adjourned to May 20, 2015 in Part AP2 for a motion schedule. Officer Pages' continued unavailability is an exceptional circumstance pursuant to CPL 30.30 (4) (g). This period of time is also excludible, pursuant to CPL § 30.30 (4) (a), due to Defendant's request for a motion schedule. Zero (0) days are chargeable to the People for counts two and four. The witness' continued unavailability did not affect the People's ability to convert counts one and three. Twenty-eight (28) days are chargeable to the People for counts one and three.
May 20, 2015 to July 13, 2015
On May 20, 2015, the parties appeared before Honorable Mary V. Rosado. Defendant requested a motion schedule for the instant motion to dismiss. Defendant was directed to file his motion by June 7, 2015. The People were instructed to respond by June 22, 2015. The case was adjourned to July 13, 2015 in Part AP2 for decision. Adjournments for motion practice are excludable pursuant to CPL § 30.30 (4) (a). Zero (0) days are chargeable to the People for counts two and four. Defendant's motion did not affect the People's ability to convert counts one and three. Fifty-four (54) days are chargeable to the People for counts one and three.
July 13, 2015 to August 26, 2015
On July 13, 2015, the parties appeared before Honorable Dakota Ramseur. Defendant filed his motion to dismiss on June 9, 2015, but the People did not file a response until July 6, 2015. The case was adjourned to August 26, 2015 in Part AP2 for decision. Adjournments for motion practice are excludable pursuant to CPL § 30.30 (4) (a). Zero (0) days are chargeable to the People for counts two and four. Defendant's motion did not affect the People's ability to convert counts one and three. Forty-four (44) days are chargeable to the People for counts one and three.
The following time periods are chargeable to the People:
October 26, 2014 to October 31, 2014 (0 days for counts two and four; 5 days for counts one and three).
October 31, 2014 to November 3, 2014 (0 days for counts two and four; 3 days for counts one and three).
November 3, 2014 to November 21, 2014 (0 days for counts two and four; 18 days for counts one and three).
November 21, 2014 to January 13, 2015 (0 days for counts two and four; 53 days for counts one and three).
January 13, 2015 to February 19, 2015 (0 days for counts two and four; 37 days for counts one and three).
February 19, 2015 to April 22, 2015 (0 days for counts two and four; 62 days for counts one and three).
April 22, 2015 to May 20, 2015 (0 days for counts two and four; 28 days for counts one and three).
May 20, 2015 to July 13, 2015 (0 days for counts two and four; 54 days for counts one and three).
July 13, 2015 to August 26 2015 (0 days for counts two and four; 44 days for counts one and three).
Zero (0) days total for counts two and four, and three hundred and four (304) days for counts one and three.
The People must be ready for trial within ninety days of the commencement of the criminal action. No days are chargeable to the People for the counts of Driving While Intoxicated and Driving While Ability Impaired. However, the entirety of time, from arraignment on, is chargeable to the People for the counts of Criminal Mischief in the Fourth Degree and Leaving the Scene of an Incident Without Reporting. In a multi-charge accusatory instrument, non-conversion of a charge does not affect the People's readiness on the converted charges (People v Cates, 2015 NY Slip Op 51100[U] [App Term, 1st Dept 2015]; People v Ausby, 46 Misc 3d 126[A] [App Term, 1st Dept 2014]).
Defendant's motion to dismiss is granted as to the charges of Criminal Mischief in the Fourth Degree and Leaving the Scene of an Incident without Reporting, but denied as to Driving while Intoxicated and Driving while Ability Impaired.
This constitutes the Decision and Order of the court.
Dated: August 26, 2015
Bronx, New York
_____________________
Mary V. Rosado, J.C.C. Footnotes
Footnote 1:The People acknowledge that they were never ready for trial as to the charges of Criminal Mischief in the Fourth Degree and Leaving the Scene of an Incident without Reporting (People's Affirmation in Opposition at p. 2).
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