People v Morillo-Reyes

[*1] People v Morillo-Reyes 2018 NY Slip Op 50861(U) Decided on June 8, 2018 Criminal Court Of The City Of New York, Bronx County Rosenblueth, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2018
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Plaintiff,

against

Anthony Morillo-Reyes, Defendant.



2016BX050873



For the Defendant:

Paul Vernon, Esq.

Bronx Defenders

265 East 161st Street

Bronx, New York 10451

For the People:

ADA Anthony Benednie

Bronx District Attorney's Office

360 East 161st Street

Bronx, New York 10451
Jeffrey Rosenblueth, J.

MOTION TO DISMISS PURSUANT TO CPL § 30.30: GRANTED

Defendant was initially charged in a felony complaint with Criminal Possession of a Controlled Substance in the Fourth Degree [PL § 220.09(1)] a class "C" felony; Criminal Possession of a Controlled Substance in the Fifth Degree [PL § 220.06(1)] a class "D" felony; Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03) a class "A" misdemeanor; Resisting Arrest (PL § 205.30) a class "A" misdemeanor and Unlawful Possession of Marijuana (PL § 221.05) a violation. On May 5, 2017 in Part FA the court dismissed the felony charges leaving the remaining misdemeanor and violation counts in the complaint.

Defendant now moves this Court for an order dismissing the misdemeanor information on the ground that he has been denied his right to a speedy trial pursuant to CPL § 30.30(5)(c) and CPL § 30.30(1)(a). Defendant claims that the six month time period within which the People must be ready for trial has expired and therefore the misdemeanor information must be dismissed.

The People, in opposition to defendant's motion, contend that only one hundred and sixty-one (161) days of chargeable time have elapsed, which is within the six (6) month speedy trial time period pursuant to CPL § 30.30(5)(c) and CPL § 30.30(1)(a)

Defendant has satisfied his initial burden under the speedy trial statute by alleging that the [*2]People failed to declare their readiness within the prescribed time period. The burden is now on the prosecution to identify the exclusions on which it intends to rely (see People v. Luperon, 85 NY2d 71; People v. Drummond, 215 AD2d 579).

Both sides have submitted papers with respect to the motion including sur-replies from the prosecution and defense. The Court has determined that the motion can be decided on the basis of the submissions, the court file and the minutes from prior court proceedings in this matter (see People v. Lomax, 50 NY2d 351; People v. Varella, 164 AD2d 924).

Defendant's motion is decided as follows:

The speedy trial time in this case commenced on November 22, 2016, the date that the felony complaint was filed in criminal court (see CPL § 100.05; CPL § 30.30(1)(a); People v. Lomax, supra; People v. Osgood, 52 NY2d 37).

CPL § 30.30(5)(c) provides, in pertinent part, that...where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action, either the felony complaint is replaced with or converted into an information, prosecutor's information or misdemeanor complaint pursuant to article 180 or a prosecutor's information is filed pursuant to section 190.70, the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.

The CPL § 30.30(5)(c) formula considers two time periods: (1) the period of chargeable time that has already elapsed from the filing of the felony complaint to the time when the court dismissed the felony charges and (2) the CPL § 30.30(1) readiness period associated with the most serious charge in the new misdemeanor information (see People v. Cooper, 98 NY2d 541). Thus, in the instant matter, the speedy trial time is calculated from November 22, 2016 (when the original felony complaint was filed) to May 5, 2017 (when the felony counts were dismissed by the court) which constitutes a period of one hundred and sixty-four days (164) days and added to this amount is the ninety (90) day time period pursuant to CPL § 30.30(1)(b).[FN1] This aggregate amount equals a total of two hundred and fifty-four (254) days. Therefore, inasmuch as this two hundred and fifty-four (254) day time period exceeds six (6) months the speedy trial time period which applies in this matter pursuant to CPL § 30.30(5)(c) is one hundred and eighty-one (181) days (see CPL § 30.30(5)(c); People v. Cooper, Id.; People v. Tychanski, 78 NY2d 909; People v. Osgood, supra; People v. Sommersell, 166 Misc 2d 774; People v. Walton,165 Misc 2d 672).

The Court will now address each court adjournment period seriatim.

November 22, 2016 to January 25, 2017: Sixty-four (64) days are chargeable to the People

On November 22, 2016 the criminal action against defendant commenced when the People filed the felony complaint with the criminal court in Part AR-1. The case was adjourned to January 25, 2017 in Part FA for grand jury action. Thus, the sixty-four (64) day time period from November 22, 2016 to January 25, 2017 is chargeable to the People ( see People v. England, 84 NY2d 1; People v. Babcock, 86 AD2d 979).

January 25, 2017 to May 5, 2017: One hundred (100) days are chargeable to the People

On January 25, 2017 in Part FA the case was adjourned for grand jury action to June 5, 2017. In the interim, on April 14, 2017 the People served on defendant and filed with the court a document labeled as a "notice of motion" seeking to reduce the felony charges in the felony criminal court complaint pursuant to CPL § 180.50. However, the People, in their "affirmation", requested that the court dismiss the felony charges. [FN2] Additionally, on April 14, 2017 the People attached to their papers three supporting depositions and a superceding felony complaint containing an additional felony charge, Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16), a class "B" felony.

The People claim that the filing of their papers on April 14, 2017 stopped the speedy trial clock. Defendant contends that the People's written submission did not constitute a motion and, in any event, did not stop the speedy trial clock because the procedure to reduce felony charges contained in a felony complaint pursuant to CPL § 180.50 does not contemplate motion practice.

When calculating speedy trial time CPL § 30.30(4)(a) excludes certain periods of delay for pre-trial motion practice including those motions filed by the prosecution (see People v. Wilson, 2 AD3d 185; People v. Batts, 227 AD2d 224; People v. Fluellen, 160 AD2d 219; People v. Siviano, 174 Misc 2d 427). Here, however, the papers that the People filed on April 14, 2017 did not constitute a valid pretrial motion. A "motion" is defined as "a written or oral application requesting a court to make a specified ruling or order", [see Black's Law Dictionary,(10th ed. 2014)]. In the instant case, although the People filed a document labeled as a "notice of motion", in actuality, the People did not seek any relief, ruling or order from the court. Instead, in such document the prosecution merely notified defendant of their intention to move to "reduce" the felony charges in the criminal court complaint on, essentially, an unspecified date. The document that the prosecution labeled as a "notice of motion" did not provide a valid return date since the People designated it to be April 14, 2017, which was the same day that defendant was served with such papers. Thus, it cannot be said that the document filed by the People on April 14, 2017 was a motion in either form or function [see People v. Collins, 82 NY2d 177; People v. O'Connell, 133 AD2d 970; People v. Torres, 60 NY2d 119; People v. Orantes, Docket No. 2015BX045215 (Criminal Court, Bronx County)(August 7, 2017); People v. Candelario, Docket No. 2015BX027039 (Criminal Court, Bronx County)(July 22, 2016); People v. Ramirez, Docket No. 2014BX010197 (Criminal Court, Bronx County)(December 5, 2014)].

Moreover, in any event, a motion is not the statutorily authorized procedure in which to [*3]reduce or dismiss felony counts in a criminal court complaint. Rather, with respect to the reduction of felony charges, CPL § 180.50 outlines the proper manner to do so by providing, in pertinent part, that:

1. ...the local criminal court may, upon consent of the district attorney, make inquiry for the purpose of determining whether (a) the available facts and evidence relating to the conduct underlying the felony complaint provide a basis for charging the defendant with an offense other than a felony, and (b) if so, whether the charges should, in the manner prescribed in subdivision three, be reduced from one for a felony to one for a non-felony offense. Upon such inquiry, the court may question any person who it believes may possess information relevant to the matter, including the defendant if he wishes to be questioned.2. If after such an inquiry, the court is satisfied that there is reasonable cause to believe that the defendant committed an offense other than a felony, it may order the indicated reduction as follows:(a) If there is not reasonable cause to believe that the defendant committed a felony in addition to the non-felony offense in question, the court may as a matter of right order a reduction of the charge to one for a non-felony offense;(b) If there is reasonable cause to believe that defendant committed a felony in addition to the non-felony offense, the court may order a reduction of the charge to one for the non-felony offense only if (i) it is satisfied that such reduction is in the interest of justice, and (ii) the district attorney consents thereto; provided, however, that the court may not order such reduction where there is reasonable cause to believe that the defendant committed a class A felony, other than those defined in article two hundred twenty of the penal law, or any armed felony as defined in subdivision forty-one of section 1.20.3. A charge is "reduced" from a felony to a non-felony offense, within the meaning of this section, by replacing the felony complaint with, or converting it to, another local criminal court accusatory instrument, as follows:(a) If the factual allegations of the felony complaint and/or other supporting depositions are legally sufficient to support the charge that the defendant committed the non-felony offense in question, the court may:(i) Direct the district attorney to file with the court a prosecutor's information charging the defendant with such non-felony offense; or(ii) Request the complainant of the felony complaint to file with the court an information charging the defendant with such non-felony offense. If such an information is filed, any supporting deposition supporting or accompanying the felony complaint is deemed also to support or accompanying the replacing information; or(iii) Convert the felony complaint, or a copy thereof, into an information by notations upon or attached thereto which make the necessary and appropriate changes in the title of the instrument and in the names of the offense or offenses charged. In case of such conversion, any supporting deposition supporting or accompanying the felony complaint is deemed also to support or accompany the information to which it has been converted;(b) If the non-felony offense in question is a misdemeanor, and if the factual allegations of the felony complaint together with those of any supporting depositions, though [*4]providing reasonable cause to believe that the defendant committed such misdemeanor are not legally sufficient to support such misdemeanor charge, the court may cause such felony complaint to be replaced or converted to a misdemeanor complaint charging the misdemeanor in question, in the manner prescribed in subparagraphs two and three of paragraph (a) of this subdivision....(d) Upon the filing of an information, a prosecutor's information or a misdemeanor complaint pursuant to this section, the court must dismiss the felony complaint from which statutory instrument is derived. It must then arraign the defendant upon the new accusatory instrument and inform him of his rights in connection therewith in the manner provided in section 170.10...."

" In considering reduction of charges one should not overlook the fact that inquiry by the court is a prerequisite for the reduction. Absent such inquiry reduction is improper, notwithstanding independent reduction by the prosecutor", Peter Preiser, Practice Commentaries, Mckinneys.Cons Laws of NY, CPL § 180.50 citing People v. Yolles, 92 NY2d 960.

With respect to the dismissal of felony charges in a felony complaint, CPL § 180.40 sets forth, in pertinent part, the following:

Where the local criminal court has held a defendant for the action of a grand jury, the district attorney may, at any time before such matter is submitted to the grand jury, apply, ex parte, to the appropriate superior court for an order directing the felony complaint and other papers transmitted to such court pursuant to subdivision one of section 180.30 be returned to the local criminal court for reconsideration of the action to be taken. The superior court may issue such an ordered if it is satisfied the felony complaint is defective or that such action is required in the interest of justice."

The Appellate Term, First Department in People v. Thomas, NY Slip Op 28094, recently dealt with a similar fact pattern as in the instant case. The appellate court held that the People's off calendar "affirmation" seeking to reduce the sole felony charge pursuant to CPL § 180.50 did not constitute a pretrial motion and thus, did not stop the speedy trial clock pursuant to CPL § 30.30 (4)(a). The appellate court further stated that "[c]learly, if the People wanted to expeditiously move to dismiss (or reduce) the felony charge and declare their readiness on the remaining charges, thereby stopping the speedy trial clock, they had remedies available to them. The People could have easily advanced the case or made an ex parte application pursuant to CPL §§ 180.40 or 180.50 to dismiss or reduce... Likewise, the People could have filed and served a notice of readiness with respect to the remaining counts", (see also People v. Clark, 28 NY3d 48; People v. Dion, 93 NY2d 893; People v. Collins, 82 NY2d 177; People v. Brooks, 190 Misc 2d 247; People v. Harris, 148 Misc 2d 408).

Here, the People did not comply with the statutory procedures to reduce or dismiss the felony charges in the criminal court complaint pursuant to CPL §§ 180.50 or 180.40 (see People v. Thomas, Id). The People did not advance this case to the calendar in Part FA on April 14, 2017 and thus, on that date, there was no inquiry by the court with respect to reduction or dismissal of the felony charges. Moreover, on April 14, 2017, the People did not file a statement of readiness. Rather, the prosecution, in their April 14, 2017 "affirmation", stated, in pertinent part, that "upon dismissal of the aforementioned [felony] charges... the People are ready for trial" (Guliucciello Aff., pg. 3 ¶ 2). However, it is well settled that "[t]he (CPL § 30.30) statute contemplates an [*5]indication of present readiness, not a prediction or expectation of future readiness" People v. Kendzia, 64 NY2d 331 (see also People v. Chavis, 91 NY2d 500; People v. Jones, 57 Misc 3d 590; People v. LeBlanc, 165 Misc 2d 882). Here, inasmuch as the People conditioned their readiness on a future event, specifically, the dismissal of the felony charges by the court on an unspecified date the People did not indicate a state of present readiness.

Finally, although, on April 14, 2017, the People filed three supporting depositions in connection with the misdemeanor charges in the felony complaint, significantly, the prosecution never filed a misdemeanor complaint. Instead, the People filed a superceding felony complaint which actually contained an additional felony charge, Criminal Possession of a Controlled Substance in the Third Degree, a class "B" felony under CPL § 220.16. However, "[r]egardless of consent or misunderstanding, an instrument containing a felony count cannot be deemed a misdemeanor information. By definition, a misdemeanor information, is an instrument that ... can only charge 'one or more offenses, none of which is a felony' CPL 1.20(4)", People v. LeBlanc, supra (emphasis added). Therefore, the People were not in a position to answer ready for trial on April 14, 2017 since a misdemeanor information accusatory instrument did not yet exist (see CPL § 180.40; People v. LeBlanc, id). As such, on April 14, 2017 the superceding felony complaint remained pending with the CPL 30.30 clock ticking. Thus, the entire period from January 25, 2017 to May 5, 2017 or one hundred (100) days is chargeable to the People.

May 5, 2017 to May 15, 2017: Ten (10) days are chargeable to the People

On May 5, 2017 this matter was adjourned to May 15, 2017 in Part AP-4. The minutes of the proceeding on May 5, 2017 indicate that the People represented that they submitted " a motion to reduce the charges [FN3] and answered "ready" on the remaining misdemeanor counts of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03) and Resisting Arrest (PL § 205.30). However, neither defendant or defense counsel were present in court. When the People state ready for trial in open court and neither defense counsel or defendant is present the People are required to promptly notify defendant of their statement of readiness (see People v. Kendzia, supra; People v. Gibson, 126 AD2d 894; People v. Williams, 167 AD2d 882 People v. Jones, 57 Misc 3d 590). Here, the People did not serve on defendant and file with the court a certificate of readiness at any time during this adjournment. Thus, the ten (10) day time period from May 5, 2017 to May 15, 2017 is chargeable to the People (see People v. Kendiza, supra; People v. Jones, supra; People v. Collins, 186 Misc 2d 818; People v. Todd, 184 Misc 2d 381).

May 15, 2017 to June 5, 2017: Twenty-one (21) days are chargeable to the People.

On May 15, 2017 in Part AP-4 defense counsel was present. Defendant was not present and the case was adjourned to June 5, 2017 in Part AP-4 for defendant to appear. The minutes of the court proceeding on May 15, 2017 indicate that defense counsel stated that defendant was not aware that the case had been adjourned from May 5, 2017 in Part FA to May 15, 2017 in Part AP-4 because he did not have a telephone. Counsel requested that the court stay a bench warrant so she could send a staff member from her office to defendant's address to notify him of the next court date. The court stayed a bench warrant and adjourned the matter to June 5, 2017 for defendant to appear. Although, defendant was not present in AP-4 on May 15, 2017, this [*6]adjournment is not excludable inasmuch as a defendant is neither "absent" nor "unavailable" within the meaning of CPL § 30.30 (4)(c) until the court has issued a bench warrant, (see People v Dugan, 273 AD2d 704; People v. Woodward, 219 AD2d 837); [see also CPL § 30.30 (4)]. Additionally, the People did not affirmatively announce their readiness for trial in Part AP-4 on May 15, 2017 (see People v. Kendzia, supra). Moreover, in their response to defendant's speedy trial motion, the People did not address this court adjournment and thus, failed to satisfy their initial burden to identify this time period as excludable under CPL § 30.30(4) [ see People v. Luperon, supra; People v. Drummond, supra]. Thus, this twenty one (21) day adjourned period is chargeable to the People.

June 5, 2017 to August 10, 2017: No days are chargeable to the People

On June 5, 2017 defendant appeared in Part AP-4 to be arraigned on the misdemeanor information. The People announced their readiness in open court. Further, the court set a motion schedule at defendant's request and adjourned the case to August 10, 2017 for the People's response and the court's decision. It is well settled that the "reasonable period of delay resulting from other proceedings concerning the defendant including...pre trial motions" is excludable time and not chargeable to the People [CPL §30.30(4)(a)]; (see also People v. Worley, 66 NY2d 523; People v Cortes, 80 NY2d 201; People v. Williams, 19 Misc 3d 675). Thus, no days are chargeable to the People.

August 10, 2017 to October 4, 2017: No days are chargeable to the People

On August 10, 2017 in Part AP-4 , pursuant to defendant's suppression motion the court granted a Mapp hearing. This adjournment period is excludable since an evidentiary hearing was necessary for the court to decide defendant's motion and as such, during this adjourment period the motion was still "under consideration by the court" [CPL §30.30(4)(a)]; (see also People v. Worley, 66 NY2d 523; People v Cortes, 80 NY2d 201; People v. Williams, 19 Misc 3d 675). Thus, no days are chargeble to the People.

October 4, 2017 to November 30, 2017: Seven (7) days are chargeable to the People

On October 4, 2017 in Part AP-4 the People answered not ready and requested an adjourned date of October 11, 2017 for hearing and trial. It is well settled that once the People have answered ready for trial their post-readiness adjournment requests are chargeable to them only for the actual period requested and not for the lengthier period granted upon the request of the defense (see People v. Nielson, 306 AD2d 500; People v. Williams, 229 AD2d 603; People v. Bailey, 221 AD2d 296; People ex rel. Sykes v. Mitchell, 184 AD2d 466) Thus, only the seven (7) day time period between October 4, 2017 and October 11, 2017 is chargeable to the People.

November 30, 2017 to January 9, 2018: No days are chargeable to the People

On November 30, 2017 in Part AP-4 the People were ready for hearing and trial but defendant was not. The case was adjourned to January 9, 2018 in Part AP-4 for hearing and trial. Thus, no days are chargeable to the People.

January 9, 2018 to January 26, 2018: No days are chargeable to the People

On January 9, 2018 in Part AP-4 the court file indicates that both the People and defendant were ready for hearing and trial but there were no trial parts available. The case was adjourned to January 26, 2018 for hearing and trial. Thus, no days are chargeable to the People.

January 26, 2018 to March 5, 2018: Seventeen (17) days are changeable to the People

On January 26, 2018 in Part AP-4 the People answered not ready for hearing and trial [*7]because it was the regular day off ("RDO") of their necessary police officer witness. The People requested February 12, 2018 for hearing and trial. The court adjourned the case to March 5, 2018 for hearing and trial. Inasmuch as the People previously answered ready for trial their post-readiness adjournment requests are chargeable to them only for the actual period requested and not for the lengthier period granted upon the request of the defense (see People v. Nielson, supra; People v. Williams, supra; People v. Bailey, supra; People ex rel. Sykes v. Mitchell, supra) Thus, only the seventeen (17) day time period between January 26, 2018 and February 12, 2018 is chargeable to the People.

March 5, 2018 to April 30, 2018: No days are chargeable to the People

On March 5, 2018 in Part AP-4 the People answered ready for trial and defendant filed the instant CPL § 30.30 motion. Thus, no days are chargeable to the People (see CPL §30.30(4)(a); People v. Worley, supra; People v Cortes, supra; People v. Williams, supra).

Based upon the foregoing, the Court concludes that 219 days are chargeable to the People. Accordingly, inasmuch as this period of time exceeds the statutory limit in which the People must be ready for trial, the defendant's motion to dismiss the information pursuant to CPL § 30.30(5)(c) and CPL § 30.30(1)(a) is granted.

Order entered accordingly.

This constitutes the decision and order of the Court. The Clerk of the Court is directed to forward a copy of this order and memorandum to the attorney for the defendant and the District Attorney.

Dated: June 8, 2018

____________________________

JEFFREY ROSENBLUETH, J.C.C. Footnotes

Footnote 1: The top counts in the misdemeanor information are class "A" misdemeanors. Thus, the applicable speedy trial time is 90 days.

Footnote 2: At the outset, the Court notes the People's erroneous usage of the terms "reduce" and "dismiss" in an interchangeable manner. These terms, which have distinct legal definitions also trigger different consequences with respect to CPL § 30.30 litigation [see CPL § 180.50; CPL § 180.40; CPL § 30.30(5)(c)]; People v. Johnson, 5 NY3d 752). Here, it appears that the felony charges in the complaint were not "reduced" but rather "dismissed" by the court in Part FA on May 5, 2017.

Footnote 3:As previously noted, it appears that the felony charges were actually dismissed.