People v Crosse

[*1] People v Crosse 2016 NY Slip Op 51266(U) Decided on August 29, 2016 Criminal Court Of The City Of New York, Bronx County Pitt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2016
Criminal Court of the City of New York, Bronx County

The People of the State of New York

against

Okeefe Crosse, Defendant.



2016BX003912



For the People: By ADA Edward Uy, Darcel D. Clark, District Attorney of Bronx County

For the Defendant: Christopher Renfroe, Esq, of Renfroe, Driscol & Foster
Bahaati E. Pitt, J.

Pursuant to CPL 30.30, the defendant, Okeefe Crosse, moves to dismiss the accusatory instrument on the ground that his statutory right to a speedy trial has been violated. Defendant is charged with one count of reckless endangerment in the second degree (Penal Law § 120.20), one count of reckless driving (Vehicle and Traffic Law § 1212), one count of aggravated unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 511 [1] [a]) and one count of unlicensed operation of a motor vehicle (Vehicle and Traffic Law § 509 [1]). For the reasons that follow, defendant's motion is GRANTED as to Count Three and DENIED as to the remaining charges.

Where the top charge of the accusatory instrument is an A misdemeanor, the People must be ready for trial within ninety days of the commencement of the criminal action (see CPL 30.30 [1] [b]). On a speedy trial motion to dismiss, the defendant must demonstrate by preponderance of the evidence that there is a delay in excess of ninety days (see People v Santos, 68 NY2d 859, 861 [1986]). The burden then shifts to the People to show that some portions of the delay are excludable (see Santos 68 NY2d at 861). In determining whether the People have met their speedy trial obligation, the court must compute the time between the filing of the first accusatory [*2]instrument and the People's statement of readiness, subtract statutorily excludable periods of delay then add post-readiness delay attributable to the People (see People v Cortes, 80 NY2d 201, 208 [1992]).

PROCEDURAL HISTORY

On January 27, 2016, defendant was arraigned on a misdemeanor complaint charging him with reckless endangerment in the second degree (Count One), reckless driving (Count Two) and aggravated unlicensed operation of a motor vehicle (Count Three). The court granted the People's application to amend the complaint to add the charge of unlicensed operation of a motor vehicle (Count Four). The People were deemed ready on Counts One, Two and Four, bail was set, and the case was adjourned to Part AP-3 on February 8, 2016, for conversion of Count Three. On February 8, 2016, the defendant appeared, having made bail. The People were not ready as to Count Three, and the case was adjourned to March 23, 2016, for full conversion. On March 23, 2016, the People filed and served a Department of Motor Vehicles Abstract of Driving Record, converting the complaint into an information. The court granted hearings on consent and adjourned the case to April 20, 2016, for hearing and trial.

On April 20, 2016, defendant did not appear, and the following colloquy ensued, after which the court stayed a bench warrant and adjourned the case to May 6, 2016, for defendant to appear:

MS. SWENSON: Legal Aid Society by Alice Swenson for [defendant's former counsel] Susan Light. Judge, I did call the phone number that you had given me, and his grandmother answered the phone. She says that officers picked him up this morning at the residence. She thinks maybe it's for Manhattan. She thinks maybe it's federal. But she is sure he was picked up this morning.

THE COURT: Defendant's grandmother advised defense counsel that defendant was arrested by NYPD in the morning; right?

MS. SWENSON: Yes.

THE COURT: . . . Why don't we put this on for May 6th . . . for defendant to appear in this part. People do not have to be ready on that date (Tr at 3-4).

On May 6, 2016, neither defendant nor defense counsel appeared, and a bench warrant was ordered. On May 23, 2016, the assigned Assistant District Attorney received a phone call from defendant's immigration lawyer, Katie Lee. Ms. Lee informed the assistant that she represented defendant on a federal removal proceeding, and that he was currently being detained in Bergen County Jail in New Jersey pursuant to a detainer issued by US Immigration and Customs Enforcement (ICE). On June 24, 2016, attorney Patrick Foster filed a notice of appearance on behalf of defendant's current defense counsel and informed the court that defendant was in federal custody in New Jersey. The court relieved the Legal Aid Society, indicated that defendant's bail was not to be forfeited and adjourned the case to August 3, 2016, for the People to produce the defendant. Among his other notations on the Record of Court Action, the court wrote: "Writ of Habeas Corpus."

On August 3, 2016, the defendant was not produced. The People requested two weeks, and the court adjourned the case to August 17, 2016, for the People to produce the defendant. On August 10, 2016, the People filed a Writ of Habeas Corpus Ad Prosequendum with the Enforcement and Removal Operation of ICE for defendant to be produced on August 17, 2016. [*3]On August 17, 2016, defense counsel waived defendant's appearance [FN1] and filed the instant motion to dismiss pursuant to CPL 30.30. The court set a motion schedule under which August 24, 2016, was the date the People's response was due. The court adjourned the case to August 29, 2016, for decision.

SPEEDY TRIAL CALCULATIONS

January 27, 2016 to February 8, 2016 (12 days charged on Count Three; 0 days on remaining counts)

On January 27, 2016, the court arraigned defendant. The People stated ready on all counts except Count Three. The court then adjourned the case to February 8, 2016, for full conversion. This pre-readiness time is chargeable to the People as to Count Three (see Cortes, 80 NY2d at 208). The People are charged 12 days on Count Three, 0 days on Counts One, Two and Four.

February 8, 2016 to March 23, 2016 (47 days charged on Count Three; 0 days on remaining counts)

On February 8, 2016, the defendant appeared, having made bail. The People stated not ready as to Count Three. The court adjourned the case to March 23, 2016, for full conversion. The People are charged 47 days on Count Three, 0 days on Counts One, Two and Four.

March 23, 2016 to April 20, 2016 (0 days)

On March 23, 2016, the People filed and served a Department of Motor Vehicles driving abstract, and stated ready on Count Three. The court granted a Huntley hearing on consent and adjourned the case to April 20, 2016, for hearing and trial. The court excludes this adjournment because the People are permitted a reasonable opportunity to prepare for trial (see CPL 30.30 [4] [a]; People v Phillips, 70 AD3d 562, 562 [1st Dept 2010], lv denied 15 NY3d 755 [2010]). The People are charged 0 days (see CPL 30.30 [4] [a]).

April 20, 2016 to May 6, 2016 (0 days)

On April 20, 2016, the defendant did not appear. Defense counsel, based on information received from a family member, informed the court that defendant had been taken into custody earlier that morning. The court adjourned the case to May 6, 2016, for defendant to appear. The court excludes this adjournment as delay not attributable to the People. The People are charged 0 days.

May 6, 2016 to June 24, 2016 (32 days)

On May 6, 2016, the defendant did not appear, nor was defense counsel present. The court ordered a bench warrant. On May 23, 2016, defendant's immigration attorney informed the assigned Assistant District Attorney that defendant was facing federal removal proceedings and was being detained in Bergen County Jail, New Jersey. The time period between May 23 and [*4]June 24, 2016, is chargeable, because although the People were aware of defendant's detention in another jurisdiction, they made no effort to produce him for trial (see CPL 30.30 [4] [e]). The People are charged 32 days.

June 24, 2016 to August 3, 2016 (40 days)

On June 24, 2016, defendant's current counsel filed a notice of appearance and informed the court that the defendant was in federal custody in New Jersey. The court adjourned the case to August 3, 2016, for the People to produce the defendant. This entire adjournment is chargeable because although the People had been aware of defendant's detention in New Jersey since May 23, 2016, they made no effort to produce him for trial (id). The People are charged 40 days.

August 3, 2016 to August 17, 2016 (7 days)

On August 3, 2016, the defendant was not produced. The People requested two weeks. The court adjourned the case to August 17, 2016, for the People to produce the defendant. On August 10, 2016, the People filed a Writ of Habeas Corpus with ICE in an effort to produce the defendant for August 17, 2016. Pursuant to CPL 30.30 (4) (e), the court charges the People 7 days, from August 3 to August 10, 2016. However, the time period between August 10 and August 17, 2016, is excludible, because the People filed a writ of habeas corpus in an effort to produce the defendant (see People v Nicholson, 228 AD2d 154, 155-56 [1st Dept 1996] [filing of writ of habeas corpus satisfies due diligence requirement]).

August 17, 2016 to August 29, 2016 (0 days)

On August 17, 2016, defense counsel waived defendant's appearance and filed the instant motion to dismiss pursuant to CPL 30.30. The court excludes this adjournment as motion practice (see CPL 30.30 [4] [a]). The People are charged 0 days.

With respect to Count Three, 138 days are chargeable to the People. As they correctly concede, the People have not met their speedy trial burden with respect to that count. Therefore, the charge of Vehicle and Traffic Law § 511 (1) (a) is dismissed. As to the remaining counts, the People are charged 79 days.

DISCUSSION

Defendant has been incarcerated since April 20, 2016, and was not produced prior to August 17, 2016. Therefore, defendant has met his initial burden of showing delay in excess of 90 days. Consequently, the People must show that some portion of the delay is excludable. Although a bench warrant was ordered in this matter on May 6, 2016, the People may not avail themselves of the exclusions set forth in CPL 30.30 (4) (c), because the defendant did not attempt to avoid prosecution; he appeared in court voluntarily prior to being detained by federal authorities. However, pursuant to CPL 30.30 (4) (e), the period of post-readiness delay "during which defendant is detained in another jurisdiction" must be excluded "provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the defendant's presence for trial" (see People v Anderson, 66 NY2d 529, 540 [1985]).

Defendant argues that all time since April 20, 2016, should be charged to the People. Because defense counsel stated in open court on that date that the defendant had been taken into [*5]custody earlier that morning, he argues, all time is chargeable until defendant is produced. The People contend that although the defendant was incarcerated since April 20, the time period between April 20, and May 23, 2016, should be excluded, because until that date, they were unaware that defendant was detained in New Jersey.

This court finds that only 79 days are chargeable to the People and denies defendant's motion to dismiss. Defense counsel's representation on April 20, 2016, that defendant had been arrested that morning does not suffice to impute to the People awareness of the fact that defendant was detained in another jurisdiction. First, a plain reading of CPL 30.30 (4) (e) reveals that the People's duty of due diligence is not triggered not by mere knowledge that defendant has been arrested, but by awareness that defendant is "detained in another jurisdiction." Furthermore, in a post-readiness posture, the People "are not required to exercise due diligence to discover defendant's out-of-state incarceration (emphasis added)" (People v Delmonte, 6 Misc 3d 1034[A], 2005 NY Slip Op 50301[U], *3 [Sup Ct, Bronx County 2005]; citing People v Myers, 184 Misc 2d 394, 397-98 [Sup Ct, NY County 2000], app withdrawn 287 AD3d 946 [1st Dept 2001], relying on People v Carter, 91 NY2d 795, 799 n* [1998]).

In support of his position that the People should be charged all time after April 20, 2016, defendant cites People v McLaurin, 38 NY2d 123 (1975). However, on decision after remand, the McLaurin court held that New York was made aware of defendant's detention in New Jersey by way of three separate communications from the New Jersey State prison inquiring whether New York would extradite defendant (see People v McLaurin, 38 NY2d 586, 587-88 [1976]). Examples of other cases where courts held that the People were aware of out-of-jurisdiction detention include: defendant himself writing a letter to the District Attorney requesting that he be produced from federal custody (see People v Mungro, 74 AD3d 1902 [2d Dept 2010], affd 17 NY3d 785 [2011]); and authorities in Baltimore notifying New York State Police that defendant was in custody (see People v Lesley, 232 AD2d 259 [1st Dept 1996], app dismissed 89 NY2d 954 [1997]). Indeed, in the instant case, the phone call from immigration counsel advising the assigned Assistant District Attorney of defendant's location certainly triggered the People's duty to make reasonable efforts to produce the defendant. Defendant cites no authority for the proposition that his counsel's April 20, 2016, representation that defendant's arrest, either locally or federally, suffices to put the People on notice that he was being detained in another jurisdiction, and this court declines to so hold today. Therefore, the court excludes the time period between April 20, and May 23, 2016. The time between May 23, and August 10, 2016, is chargeable to the People.

CONCLUSION

Defendant's motion to dismiss is GRANTED with respect to Count Three and DENIED as to the remaining charges. To date, a total of 79 days are chargeable to the People.

This constitutes the opinion and decision of the court.

Dated:August 29, 2016

Bronx, New York

E N T E R:

_____________________________

Bahaati E. Pitt, J.C.C.

Footnotes

Footnote 1:At some point after the conclusion of the case, and after defense counsel left the courthouse, Federal Marshals brought the defendant to court. The court staff's attempts to locate defense counsel were unsuccessful, so the Marshals left with defendant and the case was not recalled into the record.