People v Pullutasig

[*1] People v Pullutasig 2017 NY Slip Op 50806(U) Decided on May 31, 2017 Criminal Court Of The City Of New York, Kings County Warin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 31, 2017
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Edgar Pullutasig, Defendant.



2016KN057082



For the People: Kings County District Attorney's Office by Maggie Dunbar, Esq.

For the defendant: Legal Aid Society by Titus Mathai, Esq.
Elizabeth N. Warin, J.

The defendant is charged with Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of VTL §§ 1192(1) and (3), Consumption or Possession of Alcoholic Beverages in Certain Motor Vehicles in violation of VTL § 1227(1) and Unlicensed Driving in violation of VTL § 509(1). By motion filed on March 21, 2017, the defendant moved to dismiss the accusatory instrument pursuant to CPL §§ 30.30 and 30.20. On April 27, 2017, the People filed and served a response, and the defendant filed a reply on May 16, 2017.

For the reasons stated below, defendant's motion to dismiss pursuant to CPL §§ 30.30 and 30.20 are DENIED.

I. MOTION TO DISMISS PURSUANT TO CPL § 30.30

A. Applicable Standards

Where, as here, the top count charged in the information is an unclassified misdemeanor punishable by up to one year in jail, the People are required to be ready for trial within ninety days of the defendant's arraignment, less any excludable time (CPL § 30.30(1)(b); VTL § 1193(1)(b); PL § 55.10(2)(c)). Traffic infractions such as VTL §§ 1192(1), 1227(1) and 509(1) are not subject to dismissal pursuant to CPL § 30.30(1)(b) (see People v Dorilas, 19 Misc 3d 75, 77 [App Term 2d Dept 2008]; People v Thompson, 49 Misc 3d 141(A) [App Term 1st Dept 2015], lv. denied 26 NY3d 1112 [2016]). The ninety-day period commences with the filing of the accusatory instrument (see CPL § 1.20(17); People v Stirrup, 91 NY2d 434, 438 [1998]). The day on which the accusatory instrument is filed is excluded (see People v Stiles, 70 NY2d 765 [1987]).

Before answering ready for trial, the People must have "done all that is required of them to bring the case to a point where it may be tried" (People v England, 84 NY2d 1, 4 [1994]). Readiness for trial encompasses two elements. First, the People must "answer ready" by either [*2]communicating their readiness in open court or by filing a certificate of actual readiness with the court and serve a copy on the defendant's attorney (People v Kendzia, 64 NY2d 331, 337 [1985]). Second, "the People must in fact be ready to proceed at the time they declare readiness" (People v Chavis, 91 NY2d 500, 505 [1998]).

After a statement of readiness, the People are only charged for adjournments when the delay is solely and exclusively the fault of the prosecution, and the time cannot otherwise be excluded under Section 30.30(4) (see People v Brown, 28 NY3d 392, 404 [2016]; People v Cortes, 80 NY2d 201, 210 [1992]). Otherwise, post-readiness the People are charged with the amount of time they request on the record (see People v Bruno, 300 AD2d 93, 95 [1st Dept 2002]).

On a motion to dismiss, once the defendant alleges that the People have failed to declare their readiness within the statutorily prescribed time period, the People bear the burden of demonstrating sufficient excludable time (see People v Santos, 68 NY2d 859, 861 [1986]). The People also bear the burden of providing the minutes of a court appearance where clarification of the record is necessary to aid the court in making an informed decision as to whether the People should be charged (Cortes, 80 NY2d at 215; People v Liotta, 79 NY2d 841, 843 [1992]).

B. Time Charged to the People

On September 26, 2016, the defendant was arraigned on the misdemeanor complaint, the People filed DWI paperwork and answered "ready" and the case was adjourned to November 17, 2016 for discovery by stipulation ("DBS"). There was no objection to the People's statement of readiness at arraignments, but on the next court date, the People answered "not ready" as a supporting deposition was in fact required to convert the complaint to an information.[FN1] Accordingly, although discovery was available from the People on that date, defense counsel did not accept it in light of the unconverted complaint and the case was adjourned to January 4, 2017 for supporting deposition.

On the next date, the complaint remained unconverted and the case was adjourned again for conversion, this time until February 21, 2017. Before that date, the People filed a supporting deposition and a statement of readiness off-calendar on January 24, 2017. On the adjournment date, the People filed and served discovery and the case was adjourned to April 11, 2017 for hearing and trial. Prior to that date, defendant filed the instant motion.

Neither side disputes that the People could not have answered ready until the supporting deposition was filed off calendar on January 24, 2017. A defendant has a statutory right to be tried on an information and cannot be prosecuted on a misdemeanor complaint based on hearsay [*3]allegations unless he or she knowingly and intelligently waives this right (CPL 100.10(1); CPL 100.10(4); People v. Connor, 63 NY2d 11, 479 NYS2d 197). By extension, therefore, the People cannot answer ready for trial before having "a valid accusatory instrument upon which the defendant may be brought to trial" (People v Caussade, 162 AD2d 4, 8 [2d Dept 1990]). Where, as here, the People answer ready on an unconverted complaint at arraignment in error, that statement of readiness is deemed to be illusory (see England, at 4 ("[a] statement of readiness at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock"); see also People v Valerio, 54 Misc 3d 791, 799 [Crim Ct New York County 2016]; People v Hussain, 25 Misc 3d 1245(A), *11 [Sup Ct Bronx County 2009]); People v Peluso, 192 Misc 2d 33, 36 [Crim Ct Kings County 2002]).

The sole issue in dispute for the instant 30.30 motion therefore, is whether the People should be charged for the period of time from the defendant's arraignment on September 26, 2016 until the first adjournment on November 17, 2016. This adjournment was explicitly designated for discovery by stipulation, and therefore, would ordinarily be excluded just like motion practice initiated by either the defendant or the People pursuant to CPL § 30.30(4)(a) (see People v Thomas, 26 Misc 3d 144(A), *2 [App Term 2d 2010]; People v Ortiz, 47 Misc 3d1219, *5 [Crim Ct Kings County 2015] ("In Kings County, pursuant to a stipulation with the defense bar, the District Attorney's Office routinely grants open file discovery, making it unnecessary for the defense to make formal motions. Instead, the periods of adjournment for DBS are excludable as the equivalent of pretrial motions under CPL § 30.30(4)(a), as are oral requests for discovery"); People v Rios, 47 Misc 3d 1220(A), *4 [Crim Ct Kings County 2015] (adjournments for DBS are excludable under CPL § 30.30(4)(a)). The question is whether this excludability changes if the adjournment for DBS is later recognized in hindsight to be inappropriate as the complaint remained unconverted.

Faced with an identical factual situation, the Second Department, Appellate Term held that an adjournment for "discovery by stipulation" falls within the statutory exclusion in CPL § 30.30(4)(a) for "a reasonable period of delay" resulting from pre-trial motions and discovery practice, irrespective of whether the complaint was unconverted at the time it was granted (see People v Dorilas, 19 Misc 3d 75, 76 [App Term 2d Dept 2008]. In Dorilas, as in the present case, the defendant was arraigned on a misdemeanor complaint, and the People answered ready notwithstanding the fact that a supporting deposition was still necessary (id., at 78). No objection was made by defense counsel when the case was then adjourned for DBS which was "the functional equivalent of pre-trial discovery and motion practice" (id. at 77). As the Appellate Term noted, "[h]ad the court's understanding that the parties were proceeding by [DBS] been incorrect, then defense counsel as much as the prosecutor would have had the obligation to so inform the court" (id. at 77). The Dorilas court found that the adjournment for DBS remained an excludable adjournment pursuant to CPL § 30.30(4)(a), notwithstanding the pre-conversion status of the complaint, because of defense counsel's failure to object at the time the adjournment was granted for that purpose (id.).

This holding regarding the excludability of adjournments for DBS on unconverted complaints has been followed by other criminal courts (accord People v Khachiyan, 194 Misc 2d 161, 166 [Crim Ct Kings County 2002] ("since DBS is in lieu of motion practice and discovery in Kings County, the adjournment is excludable under CPL 30.30(4)(a) irrespective of the People's readiness"); People v Felicia, 52 Misc 3d 212, 223 [Crim Ct Kings County 2016] ("In Kings County, DBS is in lieu of motion practice, and adjournments for DBS are excluded from [*4]speedy trial calculations irrespective of whether the People are ready for trial")).

The parties do not address the applicability of the statutory exemption under CPL § 30.30(4)(a) discussed in Dorilas but instead dispute whether or not defense counsel's silence at arraignments constituted "consent" sufficient to meet the requirements of excludability pursuant to CPL § 30.30(4)(b) (see People's Resp. pp. 5-7; Def.'s Reply ¶ 5). The exclusion under 4(b) is gauged by a different standard, as it requires an affirmative act by the defendant to constitute acceptance or "consent" to the exclusion of time (see e.g. People v Smith, 82 NY2d 676, 678 [1993] ["adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay" and "[d]efense counsel's failure to object to the adjournment . . . does not constitute consent"); People v Barden, 27 NY3d 550, 554, 556 [2016]). By contrast, the exclusion under 4(a) for pre-trial motion practice does not have an explicit consent requirement and applies to motions made by either the prosecutor or the defense on competency, discovery, suppression, or consolidation, as well as for appeals and trials of other charges (see CPL § 30.30(4)(a); e.g. People v Osorio, 297 AD2d 231, 232 [1st Dept 2002] (motions to consolidate excludable under CPL § 30.30(4)(a)). In light of the authority in Dorilas, the absence of any contrary authority from a higher court or provided by the parties, the Court finds no basis not to apply the usual exclusion for motion practice for DBS.

Accordingly, the Court finds that the adjournment from September 26, 2016 to November 17, 2016 for DBS is properly excludable under CPL 30.30(4)(a), and that adjournment is not chargeable to the People. The People are, however, charged a total of 68 days from November 17, 2016 to January 24, 2017 as the discovery by stipulation process was halted once the error was realized and the discovery declined, and the complaint remained unconverted for the entire period.

Once the People filed a supporting deposition and a statement of readiness off-calendar on January 24, 2017, the People stopped the speedy trial clock. On the next court date of February 21, 2017, the case was adjourned for hearing and trial for March 21 2017, a reasonable adjournment to prepare for hearings and trial that is not chargeable to the People (see People v Greene, 223 AD2d 474 [1st Dept], lv. denied 88 NY2d 879 [1996]).

As the People are charged with 68 days, the motion to dismiss the VTL § 1192(3) charge is DENIED. CPL § 30.30 does not apply to traffic infractions, and therefore, defendant's motion to dismiss the VTL §§ 1192(1), 1227(1) and 509(1) charges pursuant to CPL § 30.30 is DENIED.

II. CONSTITUTIONAL SPEEDY TRIAL

The constitutional basis for a speedy trial is found in the Sixth and Fourteenth Amendments of the United States Constitution. Although the New York State Constitution contains no speedy trial guarantee, CPL § 30.20 and Civil Rights Law § 12 embody the federal constitutional rights (see People v Anderson, 66 NY2d 529, 534-535 [1985]). When a defendant's constitutional right to a speedy trial has been violated, the remedy is dismissal (see People v Taranovich, 37 NY2d 442, 444 [1975]; see also People v Romeo, 12 NY3d 51, 55 [2009]; People v Staley, 41 NY2d 789, 791-792 [1977]). In determining whether a constitutional speedy trial violation has occurred, the Court must weigh five factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) the extent of pretrial incarceration; and (5) whether the defense was impaired by the delay (see Taranovich, 37 NY2d [*5]at 445). The Court evaluates these factors on an ad hoc basis, "since no rigid precepts may be formulated which apply to each and every instance" of an alleged constitutional right to speedy trial violation (id.).

Driving while intoxicated is a serious offense punishable by up to one year in jail (VTL 1193[1][b]). While a traffic infraction is not a crime but a "petty offense," it is still punishable by up to 15 days in jail (CPL § 1.20[39]; PL § 70.15[4]; VTL § 1193[1][a]). Although it has been designated as less serious than a misdemeanor, driving a motor vehicle impaired by alcohol has the potential to cause personal injury and/or property damage, and the Court should not dismiss such a charge lightly (see People v Manoylo, 15 Misc 3d 1130(A), *6 [Crim Ct Kings County 2007]).

Neither the extent of the delay here (approximately 8 months from commencement of the action) nor the reasons for the delay warrant dismissal. More egregious examples of delay in advancing towards trial have not warranted findings that the constitutional right to speedy trial has been violated (see People v Thompson, 43 Misc 3d 136(A) [App Term 1st Dept 2014] (21-month delay, mostly resulting from court congestion and defendant's motion practice or unavailability, and where limited delay attributable to the People was not deliberate attempt to hamper defendant's preparation of his defense, did not justify dismissal of traffic infraction on speedy trial grounds); People v Polite, 16 Misc 3d 18, 19 [App Term 1st Dept 2007] (no constitutional speedy trial violation where 18-month delay in prosecuting traffic infraction attributable to defendant's motion practice and court congestion, rather than to the People); People v Tejada, 48 Misc 3d 1226(A) [Crim Ct Bronx County 2015] (one year delay, where only three court dates were scheduled for hearing and trial, did not warrant dismissal of traffic infraction). Cf People v Moretti, 54 Misc 3d 146(A) [App Term 2d Dept 2017] (41-month delay in prosecuting VTL § 1192(1) charge warranted dismissal on constitutional speedy trial grounds); People v Brown, 54 Misc 3d 133(A) [App Term 2d Dept 2017] (38-month delay, including nearly 20 months of delay occurring through no fault of defendant, warranting dismissal of traffic infractions). Compare Manoylo, 15 Misc 3d 1130(A), *12-13 (traffic infraction dismissed where the over two year delay in prosecution, including the People's failure to be ready on seven consecutive court appearances in the span of 11 months, was mostly attributable to the People); People v Perkins, 37 Misc 3d 696, 698 [Crim Ct Kings County 2012] (traffic infraction dismissed where there was a two year delay in prosecution and the People answered not ready for trial on 10 separate occasions)).

Furthermore, defendant was not incarcerated on this offense, so the extent of pretrial incarceration is not a consideration here. Nor is impairment of defense a significant factor here. Although the police officer witness's ability to recollect details about his interaction with the defendant is likely lessened by the passage of time, there is also a greater likelihood that the defendant may create reasonable doubt as to the officer's testimony for this same reason.

Having evaluated the particular facts and circumstances of this case under the Tarantovich factors, the Court finds that the defendant's constitutional speedy trial rights have not been violated. Accordingly, the motion to dismiss all of the charges on constitutional speedy trial grounds is DENIED.

The foregoing constitutes the opinion, decision and order of the Court.

Dated: May 31, 2017

Brooklyn, New York

E N T E R:

______________________________

Elizabeth N. Warin, J.C.C. Footnotes

Footnote 1: Both the People and the defendant claim to have raised the conversion issue on the adjournment date but no transcript has been provided to enable the Court to resolve this issue (compare People's Resp. at 6 ("the People recognized and acknowledged the error and promptly brought it to the attention of the Court and defense counsel") with Def.'s Reply at ¶ 6 (claiming this version to be an "utter falsehood" as "it was Defendant who noted the conversion issue . . . on November 17, 2016"). The Court notes that resolution of this factual dispute is not pertinent to the inquiry.