People v Danise
Annotate this CaseDecided on March 23, 2018
City Court of Gloversville, Fulton County
The People of the State of New York, Plaintiff,
against
Vincent L. Danise, III, Defendant.
CR-01969-16
Traci DiMezza, J.
Defendant moves for dismissal of charges pursuant to CPL §170.30(e) on the grounds that he was denied his statutory right to a speedy trial under CPL §30.30. After a hearing held on Defendant's motion, this Court renders the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
The criminal action against Defendant was commenced in this local criminal court by the filing of a felony complaint on September 6, 2016[FN1] . After waiving his right to a felony hearing on January 25, 2017, the Defendant moved for divestiture pursuant to CPL §180.30. The matter was thereafter transmitted to County Court on January 31, 2017.
On August 18, 2017, County Court granted the People's ex parte application under CPL §180.40, and the case was returned to City Court on September 1, 2017. The proceedings were thereafter scheduled for appearances on September 13, 2017, and on that same date, the felony complaint was replaced by a Prosecutor's Information charging the Defendant with a misdemeanor.
On January 2, 2018, after a lapse of 482 days, the People filed a written declaration of readiness[FN2] with this Court.
CONCLUSIONS OF LAW
After a hearing held on Defendant's motion, this Court finds that a total of 175 days are excluded under CPL §30.30[4][b] representing "periods of delay resulting from a continuance granted by the Court on the request of the Defendant[FN3] ." This Court also finds that a total of 62 days are excluded under CPL §30.30[4][a], occasioned by Defendant's adjournment request for "pre-trial motions." Finally, this Court finds that a period of 50 days are excluded under CPL §30.30[4][f], representing the period of time during which the Defendant was without counsel in County Court[FN4] .
This Court previously excluded the two (2) day time period between September 19, 2017 and September 21, 2017, when the proceedings were adjourned for assignment of counsel after the Defendant's arraignment. Upon further consideration, this Court finds that while CPL §30.30[4][f] excludes "the period during which Defendant is without counsel" that period is excludable only if the delay is "through no fault of the court." Since it remains the Court's responsibility to supervise the assignment of counsel to eligible indigent defendants, the pre-readiness delay caused by the unavailability of a public defender at arraignment, is considered a fault of the Court, and therefore, the People will be charged with this delay. See People v. Cortes, 80 NY2d 210.
This Court rejects the People's contention that they are entitled to an exclusion from January 25, 2017 (the date Defendant's attorney requested that the case be divested to County Court) and the date of Defendant's first appearance in County Court on April 26, 2017. Contrary to the People's argument that the "case was being transferred between jurisdictions," there is absolutely no jurisdictional gap between divestiture and transmittal. While it may be true that the local criminal court maintains jurisdiction of the case until the papers are received by the superior court (CPL §180.30), these circumstances in no way prevented the People from presenting the matter to a grand jury[FN5] or declaring readiness.
The same must be said of the exclusion that the People seek from June 27, 2017, (the Defendant's last appearance in County Court) and September 13, 2017, the date of Defendant's [*2]first appearance in City Court and the filing of the prosecutor's information. This Court simply does not agree with the People that the case was held in abeyance "between two jurisdictions." The People did not make their application for transfer until August 17, 2017, and on that date, the case was still pending in County Court. Between June 27, 2017 and August 17, 2017, there was nothing preventing the People from presenting the case to the grand jury. After County Court signed the transfer order on August 18, 2017, there was no impediment to the filing of a prosecutor's information after the presentment of the original or a certified copy of the transfer order to City Court.
It is well settled that administrative delays, court congestion and court scheduling are not exclusions under the readiness rule without a showing that the delays prevented the People from being ready for trial. See People v. LaBounty, 104 AD2d 202.
At the most, the People would be entitled to an exclusion for one (1) day while the transfer application was "under consideration" by County Court, but this single exclusion will not change the outcome of this motion.
Under CPL §30.30[1][a], a motion made pursuant to §170.30(1)(e) or §210.20(1), must be granted where the People are not ready for trial within six (6) months of the commencement of the criminal action when the Defendant is accused of a felony. In this case, the statutory six (6) month period equates to 181 days. Pursuant to §30.30, the time period for compliance with speedy trial is calculated by "computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, and subtracting any periods of delay that are excludable under the terms of the statute." See Cortes, 80 NY2d at 208)
As stated earlier, a total of 482 days has lapsed between the filing of the first accusatory instrument on September 6, 2016, and the People's declaration of readiness on January 2, 2018. This Court rules that a total of 287 days is excluded under CPL §30.30[4], leaving a total of 195 days chargeable to the People. The People's declaration of readiness, therefore, was rendered untimely, and Defendant's motion to dismiss is hereby GRANTED.
The charges against the Defendant are hereby dismissed, with prejudice.
The foregoing shall constitute the Decision and Order of this Court.
Dated: March 23, 2018
Gloversville, New YorkHon. Traci DiMezza
J.C.C. Footnotes
Footnote 1: Except for the provisions of subdivision 5 paragraphs (a) and (b), the time clock for the dismissal remedy under subdivision (1) starts ticking on the day following commencement of the criminal action. See practice commentaries to CPL §30.30 and People V. Stiles, 70 NY2d 765.
Footnote 2: The Court received the People's written "statement of readiness" by facsimile transmission on January 2, 2018. There is no record that such statement of readiness was communicated to, or received by the Defendant.
Footnote 3: The Defendant requested adjournments from September 21, 2016 until October 26, 2016 (35 days); October 26, 2016 until November 9, 2016 (14 days); November 9, 2016 until December 7, 2016 (28 days); December 7, 2016 until January 11, 2017 (35 days); January 11, 2017 until January 25, 2017 ( 14 days); September 13, 2017 until October 18, 2017 (35 days); October 18, 2017 until November 1, 2017 (14 days).
Footnote 4: The parties appeared in County Court on April 26, 2017, and the proceedings were adjourned after the Court made the determination that Defendant was not eligible for assigned counsel. It is undisputed, however, that at least as early as June 15, 2017, the People were aware that the Defendant was being represented by Attorney William Martuscello, and when they presented him with a written plea offer.
Footnote 5: Failure of town justice in transmitting order, felony complaint, supporting deposition or other pertinent documents to county court did not preclude grand jury from indicting defendant. See People v. Talham (3rd Dept.) 41 AD2d 354.
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