People v Barszczak

[*1] People v Barszczak 2015 NY Slip Op 51603(U) Decided on November 5, 2015 District Court Of Suffolk County, First District Wilutis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2015
District Court of Suffolk County, First District

People of the State of New York,

against

Zbignirew Barszczak, Defendant



2014SU029172



For the Defendant:
Matthew J. Hereth
Suffolk County Legal Aid Society

For the People:
A.D.A. Katharine D'Aquila
for Thomas J. Spota, District Attorney of Suffolk County
Karen M. Wilutis, J.

The within defendant is charged with driving while intoxicated (V & TL §1192(3)), aggravated driving while intoxicated (V & TL §1192(2-a)(a)) and two traffic infractions. The defendant moves for omnibus relief and the Court will address the defendant's demands ad seriatim.

I) Dismissal of counts one and two on statutory speedy trial grounds -

The defendant moves to dismiss counts one and two on statutory speedy trial grounds. The defendant was originally charged with violations of V & TL §§1192(3) and 1192(2-a)(a) via informations dated July 12, 2014. Said informations were stated to be based solely upon information and belief, with the source for same being the supporting deposition of a civilian witness. Although the factual portion of the information did contain allegations that the defendant was observed to have slurred speech and a strong odor of an alcoholic beverage on his breath, was unable to stand and needed assistance walking, it is clear from a reading of the accusatory instrument with its accompanying supporting deposition that those observations of an indicia of alcohol were not made by the civilian witness. Upon the defendant's prior motion to dismiss, the People filed purported superseding informations on counts one and two. The defendant now moves to dismiss on statutory speedy trial grounds, arguing that any statement of readiness made by the People on the original instruments was illusory due to insufficiency of the [*2]instruments. It is the opinion of this Court that the original informations under counts one and two were insufficient, as the factual allegations of the civilian witness pertain only to observations of the defendant's conduct and not the indicia of alcohol.

Pursuant to CPL 30.30(1)(b), the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal action, taking into account all excludable time periods. It has been held that in cases in which there exists a defective accusatory instrument, "any statement of readiness made by the People was illusory because the People could not validly declare themselves ready until there was an accusatory instrument sufficient for trial." (People v. Kerins, 26 Misc 3d 127(A) [App Term 2nd Dept, 9th & 10th Jud Dists 2009]; see also People v. Reyes, 24 Misc 3d 51 [App Term 2nd Dept, 9th & 10th Jud Dists 2009]). Notwithstanding that general principle, however, the entirety of the period from the commencement of a criminal action to the filing of a sufficient information is not automatically chargeable to the People, as adjournments on a defendant's request or consent are still excludable even in the absence of readiness. (See People v. Worley, 66 NY2d 523).

It is the opinion of this Court that the defendant has met his initial burden on a CPL 30.30 motion. (See People v. Goode, 87 NY2d 1045 [1996]). Having done so, the burden shifts to the People to prove either that they were ready for trial within the statutory speedy trial time or that certain periods are excludable pursuant to CPL 30.30(4). (See People v. Santos, 68 NY2d 859, 861 [1986]; People v. Berkowitz, 50 NY2d 333 [1980]). It is also the People's burden "to ensure, in the first instance, that the record . . . is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged" with a particular adjournment and, in the absence of a such a record, the People "must assume responsibility for the . . . delay." (See People v. Cortes, 80 NY2d 201).

In response to the defendant's statutory speedy trial motion, the People merely assert that "the original accusatory instruments under count one and two were sufficient because they satisfy each element of the crimes charged" and therefore the defendant's CPL 30.30 motion should be denied. As the People's response fails to meet the burden imposed upon them to establish the existence of specific excludable time herein, the defendant's motion to dismiss counts one and two must be granted.

Notwithstanding the dismissal of the misdemeanor charges herein, it has been held that the statutory speedy trial provisions of CPL 30.30 do not apply to traffic infractions. (See People v. Gordon, 2 Misc 3d 134[A], 2004 NY Slip Op 50190[U] [App Term 2nd Dept, 9th & 10th Jud Dists], lv app den 3 NY3d 706 ; see also People v. Taylor, 189 Misc 2d 313 [App Term 2nd Dept, 9th & 10th Jud Dists 2001]). As such, the Court will now address the remaining omnibus motions as they pertain to counts three and four herein.

IV, V) Suppression -

The defendant's motions to suppress any observations of the defendant subsequent to the vehicle stop, any tangible property and chemical test results are denied as moot by reason of the foregoing.

VI) Suppression of statements -

The defendant's motion is granted to the extent that a Huntley hearing shall be held immediately prior to trial.

VII) Discovery and inspection -

The defendant's motion for discovery and inspection is denied as moot, as the remaining counts herein constitute traffic infractions charged via simplified informations. (CPL 240.20(1)).

VIII, IX) Brady and Rosario material -

The defendant's motions for an order directing the People to furnish same is denied, as the People have responded, aver that they are not currently in possession of any further such material and acknowledge their continuing obligations pursuant to CPL Article 240 and Brady v. Maryland (373 US 83). Thus, no further order of the Court is necessary or warranted at this time.

X) Sandoval/Ventimiglia/Molineux relief -

Motions granted, with hearings to be held immediately prior to trial. The People shall furnish the defendant with CPL 240.43 material immediately prior to said hearing.

Upon issuance of the accompanying order, the Court shall furnish the defendant with notice pursuant to 22 NYCRR §200.40.

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J.D.C.