People v DelValle
Annotate this CaseDecided on February 28, 2018
Supreme Court, Kings County
The People of the State of New York, Plaintiff,
against
Isaiah DelValle, Defendant.
3632/2017
Scott G. Cerbin, Esq., PLLC, Brooklyn, New York for Isaiah DelValle (Scott G. Cerbin, of counsel).
The People are represented in this matter by Eric Gonzalez, District Attorney, Kings County, Brooklyn, New York (Gwen P. Barnes, of counsel).
Matthew J. D'Emic, J.
The defendant moves for an order, pursuant to CPL §§ 30.30 and 210.20, dismissing on speedy trial grounds two counts (Counts 7 and 10) of the captioned indictment.
Upon consideration of the defendant's moving papers, the People's opposition papers, and the court record, the defendant's motion is hereby denied.
The defendant is charged here, under a superseding indictment, with sexual crimes and other offenses involving two complainants. The incidents involving the first complainant took place on or about and between October 15, 2015 and November 23, 2015. The second set of offenses, involving a different complainant, took place on January 11, 2016. In both cases the defendant is accused of displaying a badge to his victim and threatening to arrest her if she did not comply with his requests to perform oral sex.
On March 19, 2016, the defendant was arraigned in Criminal Court on a felony complaint which charged him with Criminal Sexual Act in the Third Degree, Criminal Impersonation in the First Degree, Coercion in the Second Degree, and other crimes with respect to both sets of incidents. A grand jury indicted the defendant under Kings County Indictment No. 2501/2016 ("original indictment") and he was arraigned thereon in Supreme Court on April 28, 2016.
By decision and order dated October 27, 2016, the court (Foley, J.) dismissed Counts 7 and 10 ("subject counts") of the original indictment, albeit with leave to represent those charges within 45 days of the court's decision. Counts 7 and 10 charged the defendant with Criminal [*2]Sexual Act in the Third Degree and Criminal Impersonation in the First Degree, respectively, both relating to the January 11, 2016 incident.
In May of 2017 the People re-presented their case to a grand jury, which indicted defendant for the same offenses charged in the original indictment, under Kings County Indictment Number 3632/2017 ("superseding indictment"). The People filed the superseding indictment with a statement of readiness on May 31, 2017. Upon defendant's arraignment in Supreme Court on the superseding indictment, on June 26, 2017, the original indictment was dismissed.
Legal Discussion
The defendant contends that the subject counts in the superseding indictment must be dismissed because the People have violated his statutory right to a speedy trial pursuant to CPL §30.30. Both subject counts charge a class E felony, punishable by at least one year's imprisonment (see PL §§ 130.40[3], 190.26[1], and 70.00[3][b]). Accordingly, those counts are dismissible on speedy trial grounds where the People are not ready for trial within six months of commencement of the criminal action (CPL §30.30[1][a]; People v Chavis, 91 NY2d 500, 504-505 [1998]), in this case 184 days.
If a defendant sufficiently alleges that the People failed to declare their readiness to proceed to trial within the statutorily-prescribed time period, the People bear the burden of demonstrating their entitlement to statutory periods of exclusions (People v Brown, 28 NY3d 392 [2016]). With respect to post-readiness delay, the onus is on the People to create a clear record that allows the court to discern which party should be charged with any delay (People v Stirrup, 91 NY2d 434, 440 [1998]). However, the "defendant ordinarily has the burden of showing that any postreadiness adjournments occurred under circumstances that should be charged to the People" (People v Brown, 28 NY3d at 404). Thus, " '[i]n the absence of proof that [a] readiness statement did not accurately reflect the People's position . . ., the People [have] discharged their duty under CPL 30.30' " (id., quoting People v Carter, 91 NY2d 795, 799 [1998]).
The defendant was arraigned in Criminal Court on March 19, 2016, and a grand jury subsequently indicted defendant under the original indictment. The People filed the original indictment with a statement of readiness on March 31, 2016, which tolled the running of the speedy trial clock (People v Stirrup, 91 NY2d at 440; People v Kendzia, 64 NY2d 331, 337 [1985]). Twelve days are chargeable to the People for that period. Although the People declared their readiness well prior to the expiration of their CPL §30.30 time, defendant argues that the People's initial statement of readiness was illusory with respect to the subject counts.
Present readiness for trial is established when the People have a valid accusatory instru-ment upon which the defendant may be brought to trial, along with an announcement of readiness (see People v Caussade, 162 AD2d 4, 7-8 [2d Dept 1990], lv. denied, 76 NY2d 984 [1990]), and the People are in fact ready to proceed (People v Kendzia, 64 NY2d at 337).
In the instant proceeding, by decision and order dated October 27, 2016,[FN1] a judge of this [*3]court dismissed the subject counts in the original indictment as deficient. The defendant argues that the court's decision rendered the original indictment defective as to the subject counts. The defendant further maintains that any previously-asserted readiness by the People was illusory with respect to the subject counts because the People could never have tried defendant for the offenses charged therein under the original indictment. According to defendant, the superseding indictment was the first jurisdictionally-valid accusatory instrument for the subject counts; thus, the People could not be deemed truly ready to proceed on the subject counts prior to May 31, 2017, which was approximately fourteen months after defendant's arraignment on the felony complaint.
Where a subsequent indictment is directly derived from the felony complaint underlying the original indictment, the subsequent indictment "is related back to the commencement of the proceeding for purposes of applying the six-month limitation prescribed by CPL 30.30(1)(a)" (People v Sinistaj, 67 NY2d 236, 239 [1986]). Because the charges contained in both of the indictments at issue herein are identical, the superseding indictment clearly relates back to the original indictment for purposes of delineating the six-month limitation under CPL §30.30(1)(a) — which general premise neither the defendant nor the People dispute. Nevertheless, defendant seemingly argues that periods of excludable time as to the original indictment may not be applied to the subject counts to preserve their timeliness.
It is well-established that, when a subsequent indictment is related back to the commencement of the proceeding for purposes of CPL §30.30(1)(a), it must "also be related back for the purpose of computing the time to be excluded" (People v Sinistaj, 67 NY2d at 240 [internal citation omitted]; People v Farkas, 16 NY3d 190, 193-194 [2011]). To hold otherwise would lead to the type of "fragmenting of the statute in its application" that runs counter to the courts' preference for interpreting CPL §30.30 as an integrated whole (Sinistaj, 67 NY2d at 240). The People correctly contend that, so long as the superseding and original indictments allege the same criminal transaction and the prosecution was "technically positioned" to go to trial on the original indictment at the time it was asserted, a "statement of readiness by the People is not retroactively nullified or already excluded time rendered includable, when an indictment with respect to which the statement is made is subsequently dismissed for insufficiency of the evidence presented to the Grand Jury" (People v Terry, 225 AD2d 306, 307 [1st Dept 1996], lv. denied 88 NY2d 886 [1996]).
The defendant concedes that the subject counts were based on the same facts as those alleged in the original indictment so as to constitute a single criminal incident. The periods of time excludable with respect to the charges in the original indictment are therefore also excludable with respect to those in the superseding indictment (id.). In the absence of proof that the People's statement of readiness was illusory as to the subject counts, the onus is on the defendant to establish that periods of delay thereafter should be charged to the People because they related to the People's state of readiness (People v McKenna, 76 NY2d 59, 63-64 [1990]).
In their opposition papers, the People allege that they should be charged with sixty-nine [*4]days, to which the defendant has not submitted any rebuttal. The court, however, finds that the People are charged with 111 days.
Computing Chargeable Time
On March 19, 2016, the defendant was arraigned in criminal court on the felony complaint, which was filed on or about that date, and the matter was adjourned to March 24, 2016 for grand jury action. On March 24, 2016, the People had not filed an indictment and the matter was adjourned to September 30, 2016 on the court's felony dismissal calender. A grand jury subsequently indicted the defendant and the People filed the original indictment with a statement of readiness on March 31, 2016 (and mailed the readiness statement to the defendant's attorney that same day). As noted above, this 12-day period of pre-trial readiness delay is charged to the People (see, People v Kendzia, at 336-338). However, the filing and serving of the People's statement of readiness tolled the speedy trial clock and the People are not chargeable with any further pre-readiness time here (see, People v Carter, 91 NY2d at 796, 798-799).
The defendant was arraigned on the original indictment in Supreme Court on April 28, 2016. CPL §210.10 imposes a nondelegable duty on the trial court to arraign defendant where a felony complaint was previously filed in criminal court. Where the People have previously declared their readiness for trial, any delay in defendant's arraignment is solely attributable to the court and the time is not chargeable (People v Goss, 87 NY2d 792, 798 [1996]).
On April 28, 2016 the matter was adjourned on consent to June 30, 2016 for the People to provide the grand jury minutes, which is an excludable period (CPL §30.30[4][a]). The grand jury minutes were not ready on June 30, 2016, and the matter was adjourned to July 28, 2016 for decision as to their legal sufficiency. The People submitted the grand jury minutes at the July 28, 2016 calendar call, which was ninety-one days after defendant had been indicted.
A period of delay caused by the prosecution's failure to furnish the grand jury minutes may be charged to the People if such delay is the result of prosecutorial inaction or laxity, as the People cannot be "presently ready for trial...where they fail to provide Grand Jury minutes necessary for resolution of defendant's motion to dismiss" (People v England, 84 NY2d 1, 4 [1994]). Nonetheless, adjournments which are "otherwise excludable pursuant to CPL 30.30[4] are not chargeable to the People despite their failure to produce the transcripts [citation omitted]" (People v Taylor, 217 AD2d 404, 404-405 [1st Dept 1995], lvs. denied, 87 NY2d 846, 851 [1995]; see generally People v Beasley, 69 AD3d 741, 742-744 [2d Dept 2010], aff'd on different grounds, 16 NY3d 289 [2011]).
On June 8, 2016, off-calendar, the People filed a motion to compel the defendant's DNA sample. It was resolved in court on June 30th when the defense consented thereto.
While the People contend that the time from June 8, 2016 through July 28, 2016 is excludable, the court minutes from June 30, 2016 (for which date the People did not have the grand jury minutes) reveal that the matter was put over to July 28 solely for the court to render a decision on the grand jury minutes. Because the People waited until July 28, 2016 to submit the minutes, an additional adjournment was necessary to afford the court adequate time to review them and evaluate their sufficiency. The prosecution has not proffered an excuse for its failure to timely submit the minutes by June 30, 2016. Thus, the period of delay from June 30, 2016 through July 28, 2016 is solely attributable to the prosecution and the People are charged with 28 days.
On July 28, 2016 the case was adjourned to October 6, 2016 for the court's decision on the grand jury minutes. This period is excludable (CPL §30.30[4][a]). On October 6, 2016, the matter was administratively adjourned to October 13, 2016. This period is excluded. The court did not have a decision on October 13, 2016, and adjourned the case to October 27, 2016. This period is excludable (id.). On October 27, 2016 the court issued a decision dismissing the subject counts of the original indictment on the grounds of legally insufficient evidence. The matter was adjourned to December 8, 2016 for open file discovery. This period is excluded (id.).
Defense counsel was unable to appear on December 8, 2016 because he was engaged in a trial in New York County, and the case was adjourned to January 5, 2017 for defense counsel to appear. This period is excluded as time during which defendant was without counsel through no fault of the court (CPL §30.30[4][f]). On January 5, 2017 the matter was adjourned to February 2, 2017 for a control date. This period is not chargeable to the People. On February 2, 2017, the case was adjourned to March 20, 2017 for hearings and trial. This period is excluded (People v Reed, 19 AD3d 312, 314-315 [1st Dept 2005] [the People are entitled to a reasonable adjournment to prepare for hearings and trial once hearings are ordered], lv. denied, 5 NY3d 832 [2005]).
The People announced that they were not ready on March 20, 2017 and requested two weeks, and the matter was adjourned to April 4, 2017 for hearings and trial. The People are charged with 14 days. On April 4, 2017, the prosecution again indicated that it was not ready and, pursuant to the People's request, the court adjourned the case to April 24, 2017. Twenty days are charged to the People. On April 24, 2017, the People stated that they were not ready and requested an adjourn date of May 2, 2017; the court instead adjourned the matter to June 1, 2017 for hearings and trial. The People are charged with eight days.
A grand jury subsequently re-indicted defendant and the People filed the superseding indictment with a statement of readiness on May 31, 2017. On June 1, 2017, the People informed the court of the superseding indictment and re-affirmed their readiness as to that indictment. However, at the time of the calender call, the indictment had not been processed by the court, so the matter was adjourned to June 15, 2017 for defendant to be arraigned thereon. Defense counsel was engaged in the trial of a separate criminal matter on June 15, 2017 and the case was adjourned to June 26, 2017 for defendant's arraignment. On June 26, 2017 the defendant was arraigned on the superseding indictment and the People declared their readiness for trial on the record.
The prosecutor avers that the entire period from May 31, 2017 through June 26, 2017 is excludable because the May 31, 2017 statement of readiness stopped the speedy trial clock and any subsequent delay is attributable to either the court pursuant to CPL §210.10 or to the defense. Despite the People's contentions to the contrary, the matter was not adjourned to June 1, 2017 for defendant's arraignment on the superseding indictment. Rather, on April 24, 2017, the matter had been again put over for the Mapp/Dunaway/Wade hearing because, for the third consecutive time, the People announced "not ready."[FN2] According to the minutes from the June 1, 2017 [*5]calender call, the People declared that they were "ready to indict [sic] the Defendant on the superseding indictment, and announce ready on that," but were not ready for the hearing. Because the original indictment was not dismissed until June 26, 2017, any period of delay attributable to the People occurring before that date is properly chargeable to the prosecution.
Moreover, this court finds that the People's May 31, 2017 statement of readiness was illusory. Since it was unnecessary to arraign the defendant on the superseding indictment before the hearing, the fact that defendant could not be arraigned on June 1, 2017 does not excuse the People's lack of readiness to proceed with the hearing. Actual readiness requires the prosecution to "have done all that is required of them to bring the case to a point where it may be tried" (People v Brown, 28 NY3d at 404, quoting People v England, 84 NY2d 1, 4 [1994]). Because the hearing at issue herein must be held prior to the commencement of trial (CPL §710.40[3]), it is evident that the People were not truly ready to proceed at the time they filed their off-calender statement of readiness on May 31, 2017. Consequently, 14 days (June 1st through the June 15th adjourn date) are charged to the People.[FN3] However, the period of June 15, 2017 through June 26, 2017 is excludable as the defendant's attorney was otherwise engaged (CPL §30.30[4][f]).
On June 26, 2017 the court adjourned the matter to the July 10, 2017 AJ TAP calendar for conference. The People are not charged for this period (People v Reyes, 240 AD2d 165 [1st Dept 1997] [post-readiness adjournment at court's direction for purpose of conducting a pretrial conference is excludable], lv. denied, 90 NY2d 942 [1997]). On July 10, 2017, the matter was adjourned to August 3, 2017 for the People to provide the grand jury minutes and for defense counsel to file a motion to dismiss. This period is excluded (CPL §30.30[4][a]). The grand jury minutes were not available on August 3, 2017 and the matter was adjourned to September 13, 2017 for the People to file them with the court. The People filed the grand jury minutes off-calendar on September 11, 2017, at which time sixty-five days had elapsed since the date on which the prosecution's obligation to provide the grand jury minutes commenced. The People concede that sixty-five days falls outside the reasonable period of time within which they should have provided the minutes, and consent to being charged with an additional fifteen days. The defendant has not alleged that additional time is chargeable to the prosecution for this period. Thus, the People are charged with 15 days.
Defense counsel was unable to appear in court on September 13, 2017 and the case was adjourned to October 17, 2017 for the court's decision on the legal sufficiency of the minutes. This period is excluded (CPL §§30.30[4][a], [f]). Upon consent, the matter was adjourned off-calendar to November 3, 2017. This period is excludable (CPL §30.30[b]). On November 3, 2017 the court found the evidence adduced in the grand jury to be sufficient to establish the offenses charged and to sustain the indictment. On that same date the defendant filed the instant motion. The matter was adjourned to December 6, 2017. The time during which a speedy trial motion is under consideration by the court is excludable (People v Shannon, 143 AD2d 572, 573 [1st Dept 1988], lv. denied, 73 NY2d 860 [1988]; CPL §30.30 [4][a]).
The court finds that the People are chargeable with 111 days in total and have not surpassed the 184-day trial readiness period. Accordingly, the defendant's motion to dismiss [*6]Counts 7 and 10 of Indictment Number 3632/2017 is hereby denied.
This decision shall constitute the order of the court.
E N T E R:
___________/ S /______________
MATTHEW J. D'EMIC, J.S.C. Footnotes
Footnote 1:The October 27, 2016 decision granted the People leave to represent the dismissed counts within forty-five days. Defendant argues that six months had already elapsed at the time of the court's decision, precluding the People from obtaining a valid indictment within the CPL §30.30 time limitation. He alleges that, had the People obtained a superseding indictment within the 45-day period authorized by the court, the otherwise untimely indictment would not be subject to dismissal on speedy trial grounds. This argument is without merit. As the People note, the court lacks statutory authority to constrain the period of time within which the People may resubmit charges to the grand jury after granting leave to represent (People v Gonzalez, 28 Misc 3d 941 [Sup Ct, Bronx County 2010]). However, in the future, where the court grants the People leave to represent sua sponte subject to a time limitation, it would behoove the People to file the proper motion seeking the same if they decide to wait seven months after the expiration of the period of time authorized by the court.
Footnote 2:In her affirmation, the ADA states that the "arraignment clerk was backed up and the indictment was not ready." It is difficult to imagine how, despite the fact that the clerk had not processed the superseding indictment by the adjournment date, the matter was somehow on for defendant's arraignment on the superseding indictment on said date.
Footnote 3:On June 15, 2017, the court adjourned the case to June 26, 2017 because defense counsel was unable to appear. This delay is not chargeable to the People.
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.
