People v Abreu-Tejada

[*1] People v Abreu-Tejada 2016 NY Slip Op 50155(U) Decided on February 4, 2016 Criminal Court Of The City Of New York, Bronx County Montano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 4, 2016
Criminal Court of the City of New York, Bronx County

The People of the State of New York,

against

Rolando Abreu-Tejada, Defendant.



2015BX018543



The People

Robert T. Johnson, District Attorney, Bronx County by Natasha M. Major, Assistant District Attorney

Defendant

The Bronx Defenders by Angeline Andersen
Armando Montano, J.

Defendant is charged with Patronizing a Prostitute in the Third Degree (PL § 230.04), Public Lewdness (PL § 245.00[a]), and Exposure of a Person (PL § 245.01).

Defendant moves pursuant to CPL §§ 170.30(1)(e) and 30.30 to dismiss count one, PL § 230.04, on speedy trial grounds.

The factual allegations in the accusatory instrument, sworn to by PO Mark Stevenson, read as follows: Deponent states that, [on or about April 20, 2015 at approximately 9:30 PM at Northwest Corner of Cross Bronx Expressway and Daly Ave, County of the Bronx, State of New York], on a public street, inside a Toyota Camry in public view, deponent observed defendant engage in a sexual act with separately apprehended DONNA JACKSON (B15623198) in that deponent observed separately apprehended JACKSON to have her mouth around the exposed, erect penis of the defendant while her mouth was moving up and down.Deponent further states that separately apprehended JACKSON stated in sum and substance HE TOLD ME 10 DOLLARS. NO INTERCOURSE. JUST HEAD.Deponent is informed by PO ALBERTO MINIER of 48 PCT, ShieldNo. 7986, that at the above time and place, defendant stated in sum and substance IT WAS TEN DOLLARS FOR A BLOWJOB.

Procedural History

On April 20, 2015, defendant was arraigned on a misdemeanor complaint and released on his own recognizance. The People stated ready as to all counts. The Hon. Linda Poust-Lopez held otherwise and the case was adjourned to June 11, 2015 in order for the People to file a supporting deposition to convert the complaint.

On May 8, 2015, the People filed with the court and served on defense counsel a statement of readiness and the supporting deposition of Officer Minier.

On June 11, 2015, the People stated ready as to all counts. However, the Hon. Carol Sharpe held that the People were only ready as to counts two and three, PL § 245.00(a) and PL § 245.01, respectively, since the People had yet to file a supporting deposition from separately apprehended defendant Donna Jackson ("Jackson"). The case was then adjourned to July 17, 2015 for full conversion.

On July 17, 2015, this court held that the People were still not ready as to count one, PL § 230.04. The case was adjourned to August 7, 2015 for full conversion.

On July 28, 2015, the People filed with the court and served on defense counsel a superseding information, the supporting deposition of Officer Minier, and a statement of readiness as to all counts. The superseding information does not include the hearsay statement of Jackson.

On August 7, 2015, this case was on for full conversion. Defendant was arraigned on the superseding information and the People stated ready as to all counts. In response to defense counsel's oral application that the People had exceeded their speedy trial time as to count one, this court directed counsel to file a motion to dismiss. The case was then adjourned to November 2, 2015 for response and decision.

On November 2, 2015, the court directed the People to file their papers in opposition to defendant's motion to dismiss on or before November 9, 2015. The case was then adjourned to December 17, 2015 for decision.

Defendant argues that count one, PL § 230.04, must be dismissed as the People have failed to be ready for trial within the statutorily prescribed time of 90 days. Defendant further avers that based upon the law of the case, the issue of whether count one has been converted has been firmly established. Since the superseding information was not filed until 99 days after this action was commenced, defendant asserts that the superseding information fails to cure the hearsay defects contained in the original complaint.

Should this court consider the merits of the conversion issue, defendant asserts that the court should find that count one is unconverted and should be dismissed. Defendant notes that in order for the People to make out a prima facie case of PL § 230.04, they must allege the presence of a monetary exchange or agreement in return for sexual conduct. Defendant points out that the only mention of a fee is contained in the out-of court statements of defendant and Jackson. Since the hearsay statements allegedly made by him and Jackson do not fall within any of the recognized exceptions of the hearsay rule, defendant argues that count one of the complaint was not timely converted.

In opposition, the People contend that they should be charged with 0 days since they have been ready to proceed to trial since April 20, 2015, the date of defendant's arraignment. Citing People v. Leyva, 19 Misc 3d 498, 499 (Crim Ct, NY County 2008), the People argue that the accusatory instrument was facially sufficient at arraignment as it contained the first hand observations of the deponent officer and Jackson's statement, which qualifies as a declaration against penal interest. While the People agree that the accusatory instrument at arraignment contained hearsay from Officer Minier, who had not yet completed a supporting deposition, regarding the fact that he heard defendant admit to paying for sexual services from Jackson, they aver that this allegation from Officer Minier was not necessary to allege all of the elements of PL § 230.04.

Discussion

Here, the top count of the accusatory instrument is an A misdemeanor, which is punishable by a sentence of imprisonment of up to one year. PL §70.15(1). Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within 90 days of the commencement of a criminal action where the defendant is charged with one or more offenses, at least one of which is a misdemeanor punishable by sentence of imprisonment of more than three months, and none of which is a felony.

"[CPL 30.30] does not address problems involving speedy trial rights or due process in a constitutional sense. Rather, it is purely a statutory readiness rule'. It was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly." People v. Sinistaj, 67 NY2d 236, 239 (1986). For CPL § 30.30 purposes, in order for the People to be "ready for trial", the People must satisfy two elements. First, there must be a communication of readiness by the People which appears on the trial court's record by way of either a statement of readiness in open court or a written notice of readiness sent by the prosecutor to both defense counsel and the court clerk. See, People v. Kendzia, 64 NY2d 331 (1985). Second, the People must declare their readiness when there are in fact ready to proceed to trial. Id. at 337. "[P]resent readiness for trial is established when the People have a valid accusatory instrument upon which the defendant may be brought to trial, where the People have complied with their obligation to produce for trial a defendant in their custody and where the People have complied with all pending proceedings required to be decided before trial can commence. People v. Caussade, 162 AD2d 4, 8 (1990).

Defendant has met his initial burden of showing that more than 90 days of includable time has elapsed since the commencement of this action. People v. Luperon, 85 NY2d 71 (1995). To [*2]survive dismissal, the People must establish sufficient periods of excludable delay. People v. Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333 (1980). "Whether the People have satisfied [their 30.30] obligation is generally determined 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 terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion." People v. Cortes, 80 NY2d 201, 208 (1992).

CPL § 170.30(1)(e) provides that the court may dismiss the accusatory instrument or any count thereof where the defendant has been denied his right to a speedy trial. Therefore, "a defect in a count does not necessarily require dismissal of all counts of a multi-count accusatory instrument." People v. Minor, 144 Misc 2d 846, 848 (App Term, 2d Dept. 1989); see also, People v. Naim, 46 Misc 3d 150(A) (App Term, 1st Dept. 2015); People v. Miglio, 17 Misc 3d 165 (Crim Ct, Kings County 2007). Under partial conversion, each count in a complaint is treated separately for speedy trial purposes.

Where, as here, a criminal action is commenced by way of a misdemeanor complaint, the People must convert the complaint into an information by filing "sufficient supporting depositions...that remove all hearsay from the complaint and thereby establish a prima facie case against the defendant." People v. Flores, 189 Misc 2d 665, 666 (Crim Ct, Queens County 2001). Requiring that a nonhearsay accusation be filed as a condition precedent is a minimal but significant indication that the prosecution is legitimate. It reduces the possibility that one could be unjustly forced to stand trial by an overzealous or negligent prosecutor based on an indirect, incomplete, or inadequately investigated accusation. People v. Phillipe, 142 Misc 2d 574, 578 (Crim Ct, Kings County 1989).

An information is sufficient where "non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." CPL § 100.40(c). The requirement that there be non-hearsay allegations in support of each and every element of the offense charged can be satisfied where the allegation would be admissible as an exception to the hearsay rule. People v. Casey, 95 NY2d 354 (2000); People v. Rivera, 45 Misc 3d 386 (Crim Ct, NY County 2014).

"A person is guilty of patronizing a prostitute in the third degree when he or she patronizes a prostitute." PL § 230.04. "A person patronizes a prostitute when: (b) he pays or agrees to pay a fee to another person pursuant to an understanding that in return therefor such person or third person will engage in sexual conduct with him; (c) or he solicits or requests another person to engage in sexual conduct with him in return for a fee." PL §§ 230.02(b), (c). It is undisputed that the element of a fee or the exchange of money required to sustain a charge of PL § 230.04 is contained only in the out-of-court statements of Jackson and defendant. Unless Jackson's statement would be admissible at trial under an exception to the hearsay rule, the People could not have been ready as to count one, PL § 230.04, at arraignment.

"While the admissibility of declarations against penal interest is predicated upon the theory that their reliability can generally be presumed because a person does not ordinarily reveal facts [*3]which jeopardize his interests, nevertheless, that generalization must be tempered with a recognition of the limitations upon its validity under particular circumstances. Indeed, certain considerations may be fatal to the reliability of a declaration and thereby render the out-of-court statement inadmissible." People v. Shortridge, 65 NY2d 309, 312-313 (1985). In order for a statement to qualify as a declaration against penal interest, the following four prerequisites must be satisfied: 1) the declarant must be unavailable as a witness at trial; 2) the declarant must have been aware when the statement was made that it was adverse to his penal interest; 3) the declarant must have competent knowledge of the facts underlying the statement; and 4) there must be sufficient proof independent of the statement to attest to the trustworthiness of the statement. People v. Settles, 46 NY2d 154 (1978).

The People's argument that Jackson's statement is admissible as a declaration against penal interest rests entirely upon the holding in Leyva, a non-binding decision upon this court. Although the court in Leyva, 19 Misc 3d 498, 499, dealt with the same issue presented herein, to wit: whether "a police officer's allegation that a separately apprehended individual made a statement incriminating the defendant is inadmissible hearsay, and, thus, insufficient to convert a complaint into an information....", this court respectfully disagrees with the rationale behind the holding in Leyva. This court finds that Jackson's statement would not be admissible as a declaration against penal interest since the People have failed to establish that Jackson is unavailable to testify.

The Leyva court held that the declarant was unavailable for two reasons: First in looking at the most closely analogous procedure the grand jury, "if the declarant was compelled to testify he would have received immunity pursuant to CPL 190.40", and as such, is properly considered unavailable. As well, it is reasonable to assume that, absent any negotiated inducement, a separately charged defendant will not incriminate himself at trial, and is thus unavailable by virtue of invocating the privilege against self-incrimination. (emphasis added) (internal citations omitted). Leyva, 19 Misc 3d 501.

In this court's opinion, the Leyva court took too many liberties in assuming that the declarant would be unavailable. Just because the prima facie requirement of an information is a lower standard than the proof beyond a reasonable doubt requirement at trial (People v. Henderson, 92 NY2d 677 [1999]), does not mean that the prerequisites for the applicability of a hearsay exception are any less stringent in an information than at trial. A lesser standard of proof has no bearing on whether a hearsay exception would apply.

The unavailability of a declarant to testify is satisfied "by reason of death, absence from the jurisdiction or refusal to testify on constitutional grounds." People v. Shabazz, 22 NY3d 896, 898 (2013). In the case at bar, as the party seeking to introduce a statement as a declaration against penal interest, the People must make an offer of proof to demonstrate that the declarant is unavailable. People v. Buie, 86 NY2d 501 (1995); People v. Linyear, 25 AD3d 811 (2d Dept. 2006). One cannot assume that a declarant would invoke the privilege against self-incrimination when determining whether a statement would be admissible as a declaration against penal interest. People v. Ayala, 142 AD2d 147 (2d Dept. 1988). Absent any proof, to say that Jackson [*4]would invoke her Fifth Amendment privilege against self-incrimination, thereby rendering her unavailable, is pure speculation.

Based on the foregoing, this court makes the following calculations:

This court charges the People with 18 days for the time period from April 20, 2015 to June 11, 2015. Since Jackson's statement does not qualify as a declaration against penal interest, count one was not converted at arraignment. However, contrary to defendant's assertions, the supporting deposition of Officer Minier filed with the court and served on defense counsel on May 8, 2015 converted count one. The allegations set forth in the accusatory instrument, including defendant's admission, and the supporting deposition of Officer Minier provides 1) sufficient non-hearsay allegations of an evidentiary nature which support each and every element of the offense charged and 2) reasonable cause to believe that defendant requested another person to engage in sexual conduct with him in return for a fee. Thus, the May 8, 2015 statement of readiness was valid and effectively stopped the speedy trial clock.

Despite the fact that this case was adjourned for conversion as to count one on June 11, 2015, July 17, 2015, and August 17, 2015, this court is not bound by the calendar notations or interim markings on the court action sheet, when determining whether a specific adjournment is includable. Berkowitz, 50 NY2d 333. As stated above, the May 8, 2015 statement of readiness stopped the speedy trial clock. This court further notes that on each of those dates, the People announced their readiness as to all counts. Therefore, this court charges the People with 0 days for the time period from June 11, 2015 to August 7, 2015.

On August 7, 2015, this case was adjourned to November 2, 2015 for motion practice. On November 2, 2015, this case was adjourned to December 17, 2015 for decision. As this court had yet to render a decision on the instant motion, on December 17, 2015, this case was adjourned to February 9, 2016 for decision. Thus, the time period from August 7, 2015 to February 9, 2016 is excluded as motions were sub judice. See, People v. Brown, 227 AD2d 237 (1st Dept. 1999); People v. Douglas, 209 AD2d 161 (1st Dept. 1994); CPL § 30.30(4)(a). 0 days included.

In sum, there is a total of 18 days of includable time as to count one, PL § 230.04. The People have not exceeded the statutorily prescribed time of 90 days.

Accordingly, defendant's motion to dismiss count one, PL § 230.04, pursuant to CPL §§ 30.30 and 170.30 is denied.

This constitutes the decision and order of this court.

Dated: February 4, 2016

Bronx, New York

_______________________________

Hon. Armando Montano