People v Migliaccio

[*1] People v Migliaccio 2017 NY Slip Op 50909(U) Decided on July 19, 2017 Criminal Court Of The City Of New York, Queens County Morris, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2017
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Anthony Migliaccio, Defendant.



2016QN026059



Seymour James, Legal Aid Society, Queens County, (Kelsey Burgess, of counsel), for the Defendant. (718-286-2143).

Richard Brown, District Attorney, Queens County, (Efrat Fish, of counsel), for the People. (718-286-5868).
Gia L. Morris, J.

The defendant, Anthony Migliaccio, is charged with PL § 120.00, Assault in the Third Degree; and PL § 240.26, Harassment in the Second Degree. On February 23, 2017, the defendant submitted the instant motion to dismiss the docket against him on the grounds that the People failed to be ready for trial within the 90-day speedy trial time pursuant to CPL § 30.30. More specifically, the defendant alleged, among other issues[FN1] , that the People's statement of readiness filed off-calendar, at the same time a supporting deposition was filed, was an illusory statement of readiness since the assigned prosecutor had informed defense counsel that he had never spoken to the complaining witness (Transcript 2/1/17 at 3). In the People's response dated April 7, 2017 and May 20, 2017, the People did not dispute the defendant's allegations.

Because the defendant had raised a genuine issue as to the People's readiness to proceed to trial with the off-calendar readiness on August 5, 2016, this court issued a written decision on [*2]June 5, 2017, ordering a hearing consistent with the Court of Appeals decision in People v Sibblies, 22 NY3d 1174, 1181 [2014]. The purpose of the hearing was to provide the People with an opportunity to supply evidence to controvert the defendant's allegation that the August 5, 2016 statement of readiness was illusory. The case was adjourned to July 13, 2017 and then to July 19, 2017 for the Sibblies hearing. While the People were given multiple opportunities to provide evidence, either in the form of written affidavits or other documentation, or oral testimony, the People declined to provide additional evidence regarding the allegation that the statement of readiness filed off-calendar on August 5, 2016 was illusory. Instead, the People, through Assistant District Attorney Effrat Fish, filed a Supplemental Response simply asserting, without any further explanation, that that testimony from the prior assistant was unnecessary because "even accepting defense counsel's recitation of her conversation with [ADA Mouchette] as true, the People's statement of readiness on August 5, 2016 was not illusory" (Supplement Response 7/17/17 at 2). As such, it appears that the People concede that the defendant's allegation that the People had never spoken to the complaining witness when they announced ready for trial on August 5, 2016. Incredibly, Assistant District Attorney Fish still insists that the People should not be charged with the time. This is clearly an inaccurate understanding of the applicable speedy trial case law. Moreover, such a finding that the statement of readiness was not illusory despite the acknowledgement that the People had not spoken to what appears to be the sole witness in the case, nor provided any other evidence to establish that they were in fact ready despite not having spoken to the complaining witness would undermine the principles of the speedy trial statute.

In December 2016, the Court of Appeals issued a decision which explained and expanded upon its prior decision in People v Sibblies. Relevant to this case, the Court of Appeals held:

The People must in fact be ready to proceed at the time they declare readiness (id.). In other words, '[t]o be effective, a statement of readiness must be communicated on the record at a time when the People are truly ready to proceed" (People v Carter, 91 NY2d 795, 798 [1998]). "The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness' (People v Kendzia, 64 NY2d 331, 337 [1985]). '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" (People v England, 84 NY2d 1, 4 [1994]). '[R]eadiness is not defined simply by an empty declaration that the People are prepared to present their direct case" (id.). "The inquiry is whether the People have done all that is required of them to bring the case to a point where it may be tried" (id.). '[T]he statement' ready for trial' contemplates more than merely mouthing those words' (id. at 5).

(People v Brown, 28 NY3d 392, 403-04 [2016])(emphasis supplied). Moreover, while the Court of Appeals reiterated that an off-calendar statement of readiness is to be presumed truthful and accurate, it specifically provided for a situation where, as here, the defendant properly challenges that statement of readiness (id.). In fact, the court held that, in an appropriate case the defendant can supply: other relevant circumstances to establish that the People were not in fact ready to proceed when they declared that they were, and thus, the off-calendar statement was illusory and ineffective to stop the speedy trial clock. If the court determines that the off-calendar statement of readiness was illusory, it should calculate any delay chargeable to the People as required by statute as if the [*3]illusory statement of readiness as never made.

(Brown, 28 NY3d at 404). While the defense has the initial burden to challenge the presumptive valid off-calendar statement of readiness, once the defense has met their burden, the burden shifts to the People to establish that their off-calendar statement of readiness was, in fact, valid. In the instant case it is clear the defendant has met this burden. The uncontroverted evidence before the court is that the prior Assistant District Attorney admitted to defense counsel that he had never spoken to the complainant when he filed the supporting deposition and written statement of readiness in a case where from the four corners of the complaint, this witness is the main, if not only witness against the defendant. Accordingly, absent showing by the People that their statement of readiness was not illusory, the period of time from August 5, 2016 until September 15, 2016, when the case was on in court, is chargeable to the People, for an additional 41 days.[FN2]

In opposing the instant motion, the People seem to confuse conversion of a docket from a complaint to an information with actual readiness for trial. However, the case law makes it quite clear that to be ready for trial, the People must have done all that is needed to get the case ready for trial, which would clearly require the People to have spoken to their witness and obtained all the necessary evidence, including any medical records, they needed to bring the case to trial (see People v Kendzia, 64 NY2d 331; see also People v Khachiyan, 194 Misc 2d 161 [Crim Court Kings Count 2002]). Here, no such showing was made. Indeed, the People have presumably conceded that when they filed the certificate of readiness off-calendar, they had not spoken to the only witness named in the complaint. While it is possible that the People could have potentially proceeded to trial without that complaining witness, the People have proffered no actual evidence to establish that their off-calendar readiness assertion on August 5, 2016 was not illusory. Since the defendant has provided sufficient evidence to rebut their off-calendar readiness, their simple, conclusory allegation that they were ready without explanation is insufficient to re-but the allegation that their statement of readiness was illusory.

Accordingly, the entire period from June 7, 2016 until September 15, 2016 is charged to the People, for a total of 100 days, which exceeds the statutory limit of 90 days (see People v Brown, 28 NY3d 392; see also People v Sibblies, 22 NY3d 1174). Accordingly, defendant Anthony Migliaccio's motion to dismiss on speedy trial grounds is granted (CPL §30.30 (1)(b)).

Sealing is stayed for 30 days.

Dated: July 19, 2017

SO ORDERED:

_________________________

HON. GIA L. MORRIS, A.J.S.C Footnotes

Footnote 1: Despite agreeing in open court to provide documents and a Bill of Particulars to the defendant in the instant case in lieu of formal motions, the People have repeatedly failed to provide said documents to counsel for the defendant (See Transcript of Court minutes dated September 15, 2016 at 4.)

Footnote 2: The People conceded the time period from the defendant's arraignment on June 7, 2016 until August 5, 2016 is chargeable to them, for a total of 59 days as of August 5, 2016.