People v Gelo

[*1] People v Gelo 2018 NY Slip Op 50711(U) Decided on March 16, 2018 Justice Court Of The Town Of Greece, Monroe County Campbell, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 16, 2018
Justice Court of the Town of Greece, Monroe County

The People of the State of New York, Plaintiff,

against

Darren Gelo, Defendant.



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For the People: ADA Michael Caranante

For Defendant: APD Sarah Morrisson
Vincent B. Campbell, J.

The defendant, Darren Gelo, has moved this Court pursuant to section 170.30(1)(e) of the Criminal Procedure Law to dismiss the accusatory instrument charging the defendant with a violation of Penal Law 120.14(1), Menacing 2nd degree, a class A misdemeanor based on the prosecution's failure to be ready for trial pursuant to CPL section 30.30(1)(b).

Section 30.30(1)(b) of the CPL mandates that the Court must dismiss an accusatory instrument for a class A misdemeanor when the People are not ready for trial within 90 days from the commencement of a criminal action. To be deemed ready for trial, the Court of Appeals has held that the People must announce in open court that it is ready for trial, or serve written notice of readiness upon the defendant (defense counsel) and filed the same with the Court, People v. Kendzia 64 N.Y. 2nd 331.

Pursuant to the defendant's request, the Court scheduled a Jury Trial for November 13, 2017. On September 28, 2017, the Court issued trial notices to the People and to the defendant's counsel. On October 23, 2017, Assistant District Attorney, Michael Houck, by email to the Assistant Public Defender, Cassandra Kelly and the Court requested that the case be placed on the Court's regular docket for a PreTrial Conference. On November 1st, 2017, following the PreTrial Conference, the case was called on the regular Court calendar, at which time the Court granted, pursuant to the People's request, an adjournment of the Jury Trial past January 1st, 2018 due to the complaint's work schedule and mandatory training. The Court set a new Jury trial date for March 23, 2018.

On February 26, 2018, the defendant filed his motion for dismissal based on CPL 30.30(1)(b). The defendant, in his motion sets forth a chronological factual set of events supporting his motion for dismissal. The defendant alleges that the prosecution failed to announce readiness for trial at the court date on November 1st, 2017. The defendant further asserts that the People failed to issue a Kendzia letter following the November 1st, 2017 court date. (People v. Kendzia 64 NY 2nd 331)

In contrast, the People's Cross Notice of Motion failed to dispute or controvert the defendant's factual contentions that the prosecution failed to issue a Kendzia letter other than a general denial, nor did the People cite any evidentuary facts to establish an "excusable" delay pursuant to 30.30. The People's cross motion and response merely recites numerous cases and statutes pertaining to "excusable delays" without any factual evidence to support them. The Court further notes, that the People in their responding cross motion did admit their failure to [*2]announce readiness after the November 1st, 2017 court appearance.

According to case law, it is the People's burden to establish excusable delays to avoid the consequences of a CPL 30.30 motion. The People failed in that burden both in their written cross motion and responding affirmation to the defendant's motion and their oral response during argument of motion on March 14, 2018 in court. The People's oral response acknowledged that they did not answer readiness on November 1st, 2017 and failed to issue a Kendzia letter announcement of readiness. The Assistant District Attorney, Michael Caranante, stated during oral argument " Your Honor, the People did request an adjournment in November.... It does not appear that the People sent a Kendzia letter or an announcement of readiness until February", and he did not dispute or object to the defendant's calculation of time, nor offer any factual excusable reasons for delay.

Accordingly, the time from November 1st, 2017, to the date the People announced readiness for trial in open court on February 14, 2018, (see February 14, 2018 court transcript page 7) is chargeable to the People, well exceeding the 90 day requirements of CPL 30.30(1)(b). Therefore, the Court is mandated by said statues (CPL 170.30(1)(e) and CPL 30.30(1)(b)) to dismiss the accusatory instrument charging the defendant with the crime of Menacing 2nd degree in violation of Penal Law Section 120.14(1), and prosecution's request for an order allowing discovery by the People is denied. It is important to note that the Court's ruling is not based on the merits of the case, but solely on the People's failure to be ready for trial pursuant to CPL 30.30(1)(b). It is ordered that the Order of Protection issued by this Court on July 12, 2017 is hereby immediately vacated.

This is the Decision and Order of the Court.

Dated: March 16, 2018

Hon. Vincent B. Campbell

Greece Town Justice