People v Morris
Annotate this CaseDecided on November 13, 2018
Criminal Court of the City of New York, Bronx County
The People of the State of New York, Plaintiff,
against
Kevin Morris, Defendant.
2018BX019173
For the People: ADA Stephanie J. McCarthy
Bronx District Attorney's Office
215 E. 161st Street,
Bronx, NY 10451
For the Defendant: David Berlin
207 East 94th Street
Mezzanine Level
New York, NY 10128
Leslie A. Stroth, J.
By motion, filed on September 14, 2018, the defendant moves to dismiss the instant proceeding pursuant to C.P.L. § 30.30. The People by Affirmation filed on October 18, 2018, oppose Defendant's motion.
Having reviewed the parties' submissions, the court file, relevant statutes, and case law, the Court finds as follows:
CRIMINAL CHARGES
/i>
The relevant portion of the information reads as follows:
PO ASHLYN RODRIGUEZ of 40 PCT, Shield No. 3458, states that on or about May 28, 2018 at approximately 10:30 AM rear of 574 East 138th Street, County of the Bronx, State of New York,
THE DEFENDANT COMMITTED THE OFFENSES OF:1. (M) P.L. 145.00(1) Criminal Mischief 4^ DQO1. (V) P.L. 240.26(1) Harassment 2^C.P.L. § 30.30 STANDARD
To establish a violation under C.P.L. § 30.30, a Defendant must demonstrate the existence of a delay in excess of the statutory time period. People v. Santos, 68 NY2d 859, 861 (1986). Upon meeting this burden, the burden shifts to the People to establish that certain periods within that time period should be excluded pursuant to C.P.L. § 30.30(4). See People v. Fields, 214 AD2d 332 (1st Dept. 1995).
Here, the Defendant is charged with Criminal Mischief in the Fourth Degree in violation of Penal Law (P.L.) § 145.00(1), and Harassment in the Second Degree in violation of P.L. § 240.26(1). The top charge is Criminal Mischief in the Fourth Degree pursuant to P.L. § 145.00(1), which is a class A misdemeanor. P.L. § 145.00.
Accordingly, pursuant to C.P.L. § 30.30(1)(b):
"1. Except as otherwise provided in subdivision three, a motion made pursuant to paragraph (e) of subdivision one of section 170.30 or paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within:...(b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony;...". CPL 30.30(1)(b).Consequently, the prosecution in the instant matter was required to be ready for trial within ninety (90) days, less any excusable time. C.P.L. § 30.30(1)(b); See People v. Rosenblatt, 49 Misc 3d 372, 373, 15 N.Y.S. 3d 884 (NY Crim. Ct. 2015). The ninety (90) days commences with the filing of the accusatory instrument. See C.P.L. § 1. 20(17); see also People v. Stirrup, 91 NY2d 434, 438 (1998). However, the actual date of the filing of the accusatory instrument is not includable in the C.P.L. § 30.30 calculation. People v. Stiles, 520 NY2d 745 (1987).
In People v. Kendzia, the Court of Appeals held under C.P.L. § 30.30(1), "ready for trial" means "a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk, or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk." People v. Kendzia, 64 NY2d 331, 337 (1985). In the event that the state of readiness is made in the absence of defense counsel, which would encompass the off-calendar written statement under consideration herein, "the prosecutor would have to promptly notify (defense counsel) of the statement of readiness." Id. (Emphasis added) "Readiness requires more than simply 'mouthing' the words," it requires the People to do "all that is required of them to bring the case to a point where it may be tried". Id. Effective readiness also requires the filing of a jurisdictionally sufficient accusatory instrument. See People v. Acosta, 249 AD2d 161 (1st Dept. 1998), lv denied 92 NY2d 892 [1998]; see also People v. Brooks, 190 Misc 3d 247 (App. Term, 1st Dept 2001); People v. Matthew P. 26 NY3d 332, 335 (2015). The People's "failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded". People v. Price, 14 NY3d 61, 63, 923 N.E.2d 1107, 1109 (2010). Once a Defendant sufficiently alleges that the People were not ready within the statutory period, "the [*2]People [have] the burden of showing their entitlement to a statutory exclusion" (People v Luperon, 85 NY2d 71, 81 [1995]; see People v Santos, 68 NY2d 859, 861 [1986]).
CALCULATION OF TIME
MAY 29, 2018 - JULY 16, 2018:
Defendant was arraigned on May 29, 2018, and was released on his own recognizance with the consent of the People. The case was adjourned to July 16, 2018 for conversion, as the People stated they were not ready on May 29, 2018. The People are charged for the entire period of delay prior to asserting their readiness unless there is a specific exclusion of the time under C.P.L. § 30.30(4) that prevents the People from being able to assert their readiness (see People v Cortes, 80 NY2d 201, 213 [1992]; People v Correa, 77 NY2d 930, 931 [1991]). In the instant proceeding, the People never asserted their readiness on the record on May 29, 2018, and no specific exclusion of time under C.P.L. § 30.30(4) applies to the respective time period. Accordingly, 48 days should be charged to the People. The People have not contested this.
48 DAYS CHARGED (TOTAL = 48 DAYS)
JULY 16, 2018 - SEPTEMBER 4, 2018:
On July 16, 2018, the People were not converted, and the case was adjourned to September 4, 2018, for conversion. On August 10, 2018, the People filed a supporting deposition and a notice of readiness with the court. It is undisputed that the People should be charged for the time period prior to asserting their readiness. See People v Cortes, 80 NY2d 201, 213 (1992); People v Correa, 77 NY2d 930, 931 (1991). Accordingly, the People are charged from July 16, 2018 through September 4, 2018, totaling 25 days chargeable to the People for the time period prior to asserting their readiness. The People have not contested this.
The question before this court is whether the People should be charged with the time period after the People filed the supporting deposition and the Notice of Readiness with the court on August 10, 2018, until September 4, 2018 when the Defendant alleges to have become aware of the People's readiness at the court appearance on that date.
Specifically, the Defendant moves this court for an Order dismissing the instant case pursuant to C.P.L. §§ 170.30(1)(e) and C.P.L. § 30.30 on the ground that his speedy trial rights have been violated. The Defendant asserts that although the People filed a superseding information and notice of readiness with the court on August 10, 2018, they mailed it to defense counsel's former address, which had not been his address since 2014, and this failure to effectuate proper service on the Defendant is fatal to any claim the People might make that they were ready for trial. Defense counsel asserts that he did not receive the superseding information or the People's notice of readiness and did not become aware of said documents and the People's claim of readiness until he was provided with same in court on September 4, 2018.
Defense counsel further asserts that the notice of appearance contained in the court file, dated May 29, 2018, clearly shows his current, correct address located at 207 East 94th Street, Mezzanine Level, New York, NY 10128. However, the People's Affidavit of Service indicates that the supporting deposition and notice of readiness were mailed to 25 West 43rd Street Suite 711, NY, NY 10036, an address that defense counsel states has not been his address since April, [*3]2014. The Defendant argues that the People's failure to serve defense counsel at the proper address within the 90 days required by law is fatal to any claim the People might make that they were ready for trial and for this reason the case should be dismissed.
The People by Affirmation, oppose Defendant's motion and deny Defendant's allegations contained therein. The People assert that they filed and served a statement of readiness off-calendar on August 10, 2018, along with a supporting deposition and affidavit of translation, and converted all counts of the information as of that date. (The People incorrectly reference five counts in their Affirmation in Opposition, but there are only two counts charged in the complaint/information). The People further assert that the address they had for defense counsel was the address the Bronx District Attorney's office database lists as defense counsel's address and attach one undated page of the purported list to their Affirmation in Opposition as Exhibit B. The People further argue that courts have held that mailing a statement of readiness off-calendar to a defense counsel's former address was still effective notice, as the statement accurately reflects the People's position AND it was sent in good-faith, citing People v. Clark, 31 Misc 3d 152(A), 934 N.Y.S .2d 36 (App. Term 2011); People v Carter, 91 NY2d 795, 799 [1998]; People v Vaughn, 36 AD3d 434 [2007]).
The court is not persuaded by the People's argument and find that the People did not act in good faith when they mailed the Notice of Readiness to defense counsel's former address, when the People had actual notice of defense counsel's correct address through a valid notice of appearance filed with the court at the inception of the case, and available in the court file for the People to review.
Defense counsel availed himself of " the most direct and foolproof method to inform the People of his new address i.e., either stating the change on the record or filing a Notice of Appearance " See People v. Tejada, 59 Misc 3d 422 (NY Crim. Ct. 2018).
Under New York Court Rules ("N.Y.C.R.")§ 200.5, appearance of counsel in criminal actions, provides that "each attorney appearing in a criminal action is required to file a written notice of appearance on or before the time of the attorney's first appearance in court or not later than 10 days after appointment or retainer." See also, People v. Burroughs, 35 Misc 3d 1209(A), 950 N.Y.S.2d 724 (Sup. Ct. 2012). (Emphasis added). "This requirement not only places the court on notice of who represents a particular defendant for its own very important administrative purposes, which includes notifying the correct attorney of court decisions, or other actions, but it also provides the same notice to the People." Id. (Emphasis added).
Here, defense counsel complied with N.Y.C.R.R. § 200.5 and filed a valid notice of appearance at arraignments on May 29, 2018, which contained his current, correct address, providing the People with actual notice of defense counsel's correct address. Notably, the People do not allege that they even attempted to verify defense counsel's address in the most simple, reliable way they could have, by checking the court file for the Notice of Appearance. They provide no explanation for their failure to do so. They relied instead on their internal office list, which is clearly outdated. The People give no indication of how often the list is updated.
The Court cannot find that the People acted in good faith when they had actual notice of defense counsel's correct address when he filed a valid Notice of Appearance at the Defendant's arraignment, and it has remained stapled to the court file and readily available to the People ever since. While the Criminal Court has held that, "[t]he Defendant should not suffer because the People's mistake was made in 'good faith'." People v. Chittumuri, 189 Misc 2d 743, 736 N.Y.S.2d 581 (Crim. Ct. 2001), in this case the people have not demonstrated good faith.
The People cite several cases in support of their position that mailing a statement of readiness off-calendar to defense counsel's former address was effective notice, as the statement accurately reflects the People's position AND it was sent in good-faith including People v. Clark, 31 Misc 3d 152(A), 934 N.Y.S .2d 36 (App. Term 2011); People v Carter, 91 NY2d 795, 799 [1998]; and People v Vaughn, 36 AD3d 434 [2007]. However, the facts in the instant matter are clearly distinguishable.
In People v. Carter, the People sent letters to the Defendants at their last-known addresses (noted on the felony complaint) apprising them of their right to testify before a Grand Jury. The Court of Appeals held that the People made an effective statement of readiness prior to each Defendant's arraignment, finding that the People filed the indictment, announced their readiness on the record, and attempted to notify Defendants by sending letters to their last-known addresses, the only addresses they had for the defendants. The Court of Appeals held there that "[i]n the absence of proof that the readiness statement did not accurately reflect the People's position or that the mailing was made in bad faith, the People discharged their duty under CPL 30.30 (citations omitted)." People v. Carter, 91 NY2d 795, 798—99, 699 N.E.2d 35 (1998).
The facts in the instant matter are distinguishable from those in People v. Carter in many ways, but most significantly, the Defendant here is represented by counsel, and the People had actual notice of his current address when he filed a Notice of Appearance in arraignments with his current, correct address, in accordance with N.Y.C.R. § 200.5. For the People to have relied on an outdated, internal database in the Bronx District Attorney's office list instead of the most current information available to them, contained in the court file, demonstrates bad faith, not good faith in their efforts to serve Defendant's attorney with the Notice of Readiness. While the People may have met the first requirement set forth in Carter for proper service of a Notice of Readiness, that it accurately reflect their position of readiness, they have failed to meet the second, that the mailing must not have made been in bad faith.
Likewise, the facts here are distinguishable from those in People v. Vaughn, in which counsel conceded that there was no bad faith on the part of the People. In the instant matter there has been no such concession. Defendant maintains that the People's failure to properly serve counsel, when they had his current, correct address, warrants dismissal of the charges against him. Good faith by the People has not been conceded.
Based on the foregoing, this court finds that the People did not act in good faith by mailing the notice of readiness to defense counsel's former address when the People had actual notice of defense counsel's correct address through a valid notice of appearance. Thus, the People are charged with the 25 days from July 16, 2018, until August 10, 2018, and the 25 days from August 10, 2018, until September 4, 2018, totaling 50 days chargeable to the People.
50 DAYS CHARGED (TOTAL = 98 DAYS)
SEPTEMBER 4, 2018 - OCTOBER 18, 2018
On September 4, 2018, defense counsel argued he was not properly served with the People's notice of readiness and requested a motion schedule to file a motion pursuant to C.P.L. § 30.30. The court provided the parties with a motion schedule, defense was to file a motion on or before September 18, 2018, and the People were to submit a response on or before October 2, 2018. The case was adjourned to October 18, 2018, for response and decision. Thus, the People are not charged for an adjournment period granted for motion practice pursuant to C.P.L. § [*4]30.30(4)(a) and People v. Brown, 227 A.D.2d 237 (1st Dept. 1996).
0 DAYS CHARGED (TOTAL = 98 DAYS)
OCTOBER 18, 2018 - NOVEMBER 13, 2018
On October 18, 2018, the parties appeared for a decision on Defendant's pending motion. However, the People failed to timely submit their opposition on or before October 2, 2018, and instead filed and served their Affirmation in Opposition in court on October 18, 2018. The People provided no reasonable explanation for the delay in filing their response. As a result, the court charged the People for their delay in filing their response. See People v. Reid, 245 AD2d 44 (1st Dept 1997), lv denied, 91 NY2d 1012 (1998) (People were properly charged with 20 days of delay for failing to respond to motion on originally scheduled date); see also People v. Bonilla, 94 AD3d 633, 634, 942 N.Y.S.2d 509, 511 (2012).
16 DAYS CHARGED (TOTAL = 114 DAYS)
CONCLUSION
For the foregoing reasons, the People are charged with 114 days, which exceeds the 90-day requirement within which the People must announce their readiness for trial pursuant to C.P.L. § 30.30(1)(b). Accordingly, the Defendant's motion to dismiss pursuant to C.P.L. § 30.30 is GRANTED.
Given the dismissal of this matter, the remaining branches of Defendant's motion are hereby deemed moot.
This constitutes the Decision and Order of the Court.
Date: November 13, 2018
Bronx, New York
/s/
LESLIE A. STROTH, J.C.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
