People v Carrenard

[*1] People v Carrenard 2017 NY Slip Op 51219(U) Decided on September 18, 2017 Criminal Court Of The City Of New York, Kings County Tully, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 18, 2017
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,

against

Rigaud Carrenard, Defendant.



2016KN054230



For the Defendant: Paul Beyder, The Legal Aid Society, 111 Livingston Street, Brooklyn, NY 11201

For the People: Assistant District Attorney Patrick Chilelli, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201
Jane C. Tully, J.

The defendant was arraigned on September 13, 2016, and charged with the unclassified misdemeanors of Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL § 511[2][a][iv]) and Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL § 511[1][a]), and two traffic infractions of Use of Portable Electronic Devices (VTL § 1225-[d][1]) and Unlicensed Operator (VTL § 509 [1]). The defendant moves for an order to dismiss the charges pursuant to CPL § 30.30 (1) (b) on speedy trial grounds. The People oppose the defendant's motion.

For the reasons stated below, the defendant's motion to dismiss pursuant to CPL § 30.30 (1) (b) is granted in part, and denied in part.

Background

The defendant was arraigned on September 13, 2016. At that time, the People gave notice pursuant to CPL § 170.20 of their intention to present the case to the grand jury. The People also announced ready on the misdemeanor charges. The case was adjourned to September 16, 2016.[FN1] The September 13, 2016 calendar call minutes do not indicate the reason for the adjournment (see minutes September 13, 2016 calendar call). The defendant maintains that the matter was [*2]adjourned for grand jury action. The People contend that the case was adjourned for Discovery by Stipulation (DBS) or grand jury action. On September 16, 2016, the People filed and served DBS.[FN2] The People did not maintain their readiness, but instead stated that there was "enough for a felony level charge" (see minutes September 16, 2016 calendar call), thereby once again indicating their intention to present the case to a grand jury. The defendant did not appear and a bench warrant was ordered.

On September 20, 2016, the defendant voluntarily appeared, the bench warrant was vacated, and the case was adjourned to November 17, 2016.

On November 17, 2016, the People answered not ready and requested 10 days. The People indicated that their offer was a plea to the VTL § 511 charge with a sentence of either probation or a fine, otherwise the People would seek an indictment from the grand jury charging the case at the felony level. The defendant orally served CPL § 190.50 notice of his intention to testify before the grand jury, and indicated that he would serve CPL § 190.50 notice in writing as well (see minutes of November 17, 2016 calendar call).The case was adjourned to January 26, 2017.

On January 26, 2017, the People filed and served additional discovery and the case was adjourned to March 15, 2017 for hearings and trial.[FN3] On March 15, 2017, the People answered not ready, and the case was adjourned to May 3, 2017 with the defendant's consent for possible disposition. On May 3, 2017, the defendant did not appear and a bench warrant was ordered. On May 5, 2017, the defendant voluntarily appeared, the bench warrant was vacated, and the case was adjourned to June 14, 2017.

On June 14, 2017, the People answered not ready and requested 7 days. The case was adjourned to August 3, 2017 for hearings and trial. On August 1, 2017, the defendant filed the instant motion. On August, 3, 2017, the court ordered the People to file a response by August 17, 2017, and the case was adjourned to September 19, 2017 for decision.

The defendant contends that at his arraignment on September 13, 2016, the People served grand jury notice pursuant to CPL § 170.20, and the People have never filed an indictment nor have the People withdrawn the CPL § 170.20 notice. Therefore, the defendant argues, all of the time since his arraignment is chargeable, as the People could not have been ready, and the People's readiness for trial was illusory.

The People argue that there is, at most, 27 days of chargeable time. The People also contend that the case was adjourned for DBS or grand jury action from arraignment, but argue that since the case has been adjourned for hearings and trial six separate times in criminal court, the People thereby made clear to the court and to the defendant their intention to move forward with the misdemeanor charges. Moreover, the People argue that the fact that the People filed DBS on September 16, 2016 served as an effective withdrawal of any CPL § 170.20 notice.

Discussion

CPL §170.20 (2) provides that: At any time before entry of a plea of guilty to or commencement of a trial of an accusatory instrument ... the district attorney may apply for an adjournment of the proceedings in the local criminal court upon the ground that he intends to present the misdemeanor charge in question to a grand jury with a view to prosecuting it by indictment ... In such case, the local criminal court must adjourn the proceedings to a date which affords the district attorney reasonable opportunity to pursue such action, and may subsequently grant such further adjournments for that purpose as are reasonable under the circumstances ...

CPL §170.20 mandates an adjournment for grand jury action once notice is given by the People of their intention to present the case to the grand jury (see People v Barkin, 49 NY2d 901, 903 [1980]; People v Bouyea, 172 Misc 2d 835, 836 [Sup Ct, Kings County 1997]). The court does not have the discretion to adjourn for any other purpose (see People v E.C., 26 Misc 3d 609, 611 [Crim Ct, New York County 2009]). The statute provides for a stay of criminal court proceedings; as such, the criminal court cannot accept a guilty plea or commence a trial on the misdemeanor charges (People v Barkin, 49 NY2d at 903; People v Bouyea, 172 Misc 2d at 837; People v E.C., 26 Misc 3d at 612]). Nevertheless, the criminal court retains jurisdiction until an indictment is filed (see People v Brancoccio, 189 AD2d 525 [2d Dept 1993; People v Rivera, 1009 [Crim Ct, New York County 1989]). As such, during the pendency of a CPL § 170.20 application, CPL § 30.30 time is chargeable to the People absent any legal reason for exclusion (People v Rivera, 144 Misc 2d at 1010; People v E.C., 26 Misc 3d at 611]).

The People must be ready for trial within 90 days of the commencement on a criminal action where, as here, the top count on an accusatory instrument charges an unclassified misdemeanor punishable by a term of imprisonment that exceeds three months (CPL § 30.30 [1] [b]). In order for the People to effectively announce ready for trial, they must both communicate their readiness and in fact be ready for trial (People v Kendzia, 64 NY2d 331, 337 [1985]). The People's statement of readiness for trial is valid when they have removed all legal impediments to the commencement of their case (see People v England, 84 NY2d 1, 4 [1994]). The defendant bears the burden of going forward by sworn allegations of fact to show that there has been an inexcusable delay beyond the time allowed by statute, and then the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss (People v Santos, 68 NY2d 859, 861 [1986]; People v Berkowitz, 50 NY2d 333 [1980]).

On September 13, 2016, the People gave notice pursuant to CPL § 170.20 and answered ready on the misdemeanor charges. When the People move pursuant to CPL §170.20 to present charges to the grand jury, they do so " 'at their own peril' " (People v Rivera 144 Misc 2d at 1010 citing People v Jacquin, 127 Misc 2d 241, 244 [County Ct, Nassau County 1985]). CPL § 170.20 notice provides for a stay of criminal court proceedings, including the ability to commence a trial. Therefore, the People cannot validly be ready for trial, and simultaneously move to present the case to a grand jury. Accordingly, the People's announcement of readiness on September 13, 2016 was invalid.

Moreover, CPL § 170.20 notice mandated that the case be adjourned for grand jury action. Once the People made a CPL § 170.20 motion, the defendant could not have objected to the adjournment for that purpose (see Rivera, 144 Misc 2d at 1010). Although on September 16, 2016, the People filed and served DBS, the record does not reflect that the defendant was aware that the case might have been adjourned for DBS from arraignments. The minutes do not reflect [*3]the reason for the adjournment. The defendant did not request or consent to an adjournment for DBS (see People v Liotta, 79 NY2d 841, 843 [1992] [a consent to an adjournment must be clearly expressed by the defendant to relieve the People of the responsibility for that portion of the delay]). Nor did the defendant affirmatively waive CPL § 30.30 time while the People decided whether to present the case to a grand jury (see People v Kroha, 262 AD2d 583 [2d Dept 1999]); People v Muhanimac, 181 AD2d 464, 465 [1st Dept 1998]). In any event, it is the People's burden to clarify the purpose of an adjournment (People v Liotta, 79 NY2d at 843), and here, the People concede that the case had also been adjourned for grand jury action. Accordingly, the period between September 13, 2016 and September 16, 2016 is chargeable to the People. [3 days charged]

On September 16, 2016, the People filed and served DBS. The People's filing of the DBS did not serve as an effective withdrawal of CPL § 170.20 notice. The People did not affirmatively withdraw CPL § 170.20 notice nor did the People make clear that their actual present intention was to proceed with the criminal court complaint (see People v E.C., Misc 3d at 612) (a statement of readiness and letter that the People intended to withdraw CPL § 170.20 notice on the next court date was insufficient to assert present decision not to move forward with the case as a felony). On the contrary, the People reiterated their position that they may still proceed to the grand jury by stating that there was "enough for a felony level charge." However, since the defendant warranted on September 16, 2016 and did not return to court until September 20, 2016, this period is excludable (CPL § 30.30[4][c][ii]).

On September 20, 2016, the defendant voluntarily appeared and the case was adjourned to November 17, 2016. The time period immediately following the defendant's return on a bench warrant is not chargeable to the People (see People v. Drummond, 215 AD2d 579, 581 [2d Dept 1995]; People v Roberts, 236 AD2d 233 [1st Dept 1997]; People v Muhanimac, 181 AD2d 464 [1st Dept 1992]).

On November 17, 2016, the People answered not ready and requested 10 days. The People also indicated that if the defendant did not accept the stated offer they would seek an indictment from the grand jury charging the case as a felony. The defendant then orally served CPL § 190.50 notice, and stated that he would also serve written notice of his intention to testify before the grand jury. At that time, the People did not notify the court or the defendant that CPL § 170.20 notice had been withdrawn. The People did not reject the defendant's notice to testify before the grand jury or clarify in some way that they were not continuing to make a CPL § 170.20 motion at that time. The People's actions on November 17, 2016 made clear that their intention was to move forward with the case as a felony [FN4] . Moreover, having found that the People's previous announcement of readiness on September 13, 2016 was invalid, the People requested time pre-readiness, and therefore must be charged for the entire adjournment (see People v Chavis, 91 NY2d 500, 504 [1998]; People v Smith, 82 NY2d 676, 678 [1993]; People v Kendzia, 64 NY2d 331, 337—338 [1980]). Accordingly, the time between November 17, 2016 and January 26, 2017 is chargeable to the People. [70 days charged; Total 73 days]

On January 16, 2017, the People filed and served additional discovery and the case was adjourned to March 15, 2017 for hearings and trial. On that date, there is no indication that the [*4]People renewed their application to present the case to a grand jury or that the People continued to maintain that the case would be prosecuted as a felony (see People v E.C., 26 Misc 2d at 613). There is also no indication that it was not the defendant's understanding that the case was being adjourned for hearings and trial (see People v Dorilas, 19 Misc 3d 75 [App Term 2d Dept 2008]). Nor is there any indication that the court did not advise the parties that the case would be adjourned for hearings and trial. It seems apparent that on that date, the case was no longer on the path of a felony and was now proceeding as a misdemeanor. Therefore, this period is excludable.

On March 15, 2017, the People answered not ready, and the case was adjourned to May 3, 2017 with the defendant's consent for plea negotiations. This period is excludable (People v Henderson, 248 AD2d 485 [2d Dept 1998]; People v. Zhu, 245 AD2d 296 [2d Dept 1997]).

On May 3, 2017, the defendant did not appear for his court date. The defendant voluntarily appeared on May 5, 2017. This period is excludable.

On May 5, 2017, the defendant voluntarily appeared and the case was adjourned to June 14, 2017 for hearings and trial. This period is also excludable.

On June 14, 2017, the People answered not ready and requested 7 days. The case was adjourned to August 3, 2017. The defendant filed the instant motion on August 1, 2017. The People had not, prior to this time, validly announced ready for trial, as such, the period from June 14, 2017 to August 1, 2017, when the defendant filed the instant motion is chargeable (see People v Chavis, 91 NY2d at 504; People v Smith, 82 NY2d at 678]). [48 days chargeable; Total 121]

On August 3, 2017, the court ordered the People to file a response to the defendant's motion by August 17, 2017. The People filed their response on September 8, 2017. The People did not respond to the court-ordered deadline, nor did the People request additional time to submit a response before the deadline. The People are charged for the period between August 17, 2017 and September 8, 2017 since this period constitutes a period of unreasonable delay in excess of the appropriate deadline to respond which was previously set by the court (see People v Delosanto, 307 AD2d 298, 299 [2d Dept 2002][ People charged with a 13-day period from April 10, which was a court-imposed deadline to respond to the defendant's motions, to April 23, the date that the People actually filed a response]; People v Gonzalez, 266 AD2d 562, 563 [2d Dept 1999][ the 20-day period from August 28, the date by which the People were originally scheduled to respond to September 17, the date upon which they actually did respond properly charged to the People]). [22 days chargeable; Total 143].

For the reasons set forth above, the People are charged with 143 days of speedy-trial time.

The People have exceeded their time to be ready for trial on the misdemeanor charges. Therefore, the defendant's motion to dismiss the charges of Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree (VTL § 511[2] [a][iv]) and Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL § 511[1] [a]) pursuant to CPL § 30.30 is granted.

CPL § 30.30 does not apply to traffic infractions (People v May, 29 Misc 3d 1[App Term, 2d Dept, 9th & 10th Jud Dists 2010]; People v Ferreira, 22 Misc 3d 32 (App Term, 2d Dept, 2d & 11th Jud Dists 2008]). As such, the defendant's motion to dismiss the charges of Use of Portable Electronic Devices (VTL § 1225-[d] [1]) and Unlicensed Operator (VTL § 509 [1]) is denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: September 18, 2017

Brooklyn, New York

SO ORDERED:

________________

Jane C. Tully

Judge of the Criminal Court Footnotes

Footnote 1:The court action sheet indicates that the People filed CPL § 170.20 notice. Although the court action sheet also indicates that the reason for the adjournment was for DBS, the calendar minutes reveal that the court did not state any reason for the adjournment.

Footnote 2:The People's response indicate that they maintained their readiness on September 16, 2016. However, a review of the minutes for September 16, 2016 calendar call do not reflect that the People stated that they were ready on that date.

Footnote 3:The People's response indicate that they answered not ready. The defendant does not address this adjournment in his motion, and the Court was not provided with the calendar minutes. As such, the Court is unable to ascertain any other action on that date.

Footnote 4:Although the court action sheet indicates that on November 17, 2016 the case was being adjourned on January 26, 2017 for hearings and trial, based on the People's actions and the fact that defendant served CPL § 190.50 notice, the case should have been adjourned for grand jury action.