People v Aviles
Annotate this CaseDecided on September 7, 2018
Suprme Court, New York County
The People of the State of New York, Plaintiff,
against
Thomas Aviles Jr., Defendant.
5338/16
Assistant District Attorney Christopher Dey
Defense counsel: Renee C. Hill, Esq.
Ann E. Scherzer, J.
A central tenet of speedy-trial analysis pursuant to CPL §30.30 is that the People can stop the clock from running by announcing their readiness for trial in court or by filing with the court and serving on defense counsel a statement of readiness. People v. Brown, 28 NY3d 392, 404 (2016); People v. Stirrup, 91 NY2d 434, 440 (1998). To be valid, an off-calendar statement of readiness is only valid if made "when the People are in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness." People v. Kendzia, 64 NY3d 331, 337 (1985); People v. Bonilla, 94 AD3d 633 (1st Dept. 2012). The instant motion calls for the Court to determine whether the statement of readiness communicated to the parties on April 12, 2018 constituted an indication of present readiness, or an expectation of future readiness.
Background
On February 2, 2017, defendant was arraigned on an indictment charging him with two counts of Criminal Possession of a Weapon in the Third Degree, in violation of Penal Law §265.02(1) and three counts of Menacing in the Second Degree, in violation of Penal Law § 120.14. All charges stemmed from an incident in which defendant is alleged to have threatened another individual with a knife. Defendant was arrested on December 16, 2016. The witnesses to the crime were Elsa Arias and her two sons. From the time of his Supreme Court arraignment until April 9, 2018 the case proceeded through various adjournments which resulted in 126 days [*2]being chargeable to the People.[FN1]
On April 9, 2018, the People stated that they were ready to conduct pre-trial hearings but not yet ready to proceed to trial because, as the ADA assigned to the case advised the Court, the People had sought to serve a subpoena on their witnesses on the previous Friday, but learned that they had been evicted from their home. As a result, the ADA acknowledged that he was no longer in contact with them. After discussion with the parties, and to spare the defendant the need to return to court on a case which might never be provable absent the appearance of the missing witnesses, the Court adjourned the case until June 8, a date that both parties agreed would be after the speedy trial time had elapsed. In setting the lengthy adjournment, the Court noted that if the People were to find their witnesses, they should file a certificate of readiness and that if the parties were able to schedule a trial prior to June 8 they could advance the matter to an earlier date. Otherwise, the case would likely be dismissed on June 8.
Certificate of Readiness
In fact, the People filed with the court and served on defendant a certificate of readiness (COR) three days later, on April 12, 2018. On June 8, the defendant moved for dismissal of the indictment pursuant §30.30(1)(a) asserting that the April 12 COR was illusory. The People opposed that motion. In an oral decision rendered on August 1, 2018, the Court found that 126 days were chargeable to the People but noted an outstanding issue of fact regarding the 57 days that had lapsed between April 12 and June 8, 2018. The Court ordered and on August 3, 2018 held a hearing to determine the validity of the COR filed by the People on April 12, 2018.
At the 30.30 hearing the Court heard testimony from Investigator Frank Connelly of the New York County District Attorney's office. Connelly testified that on April 3, 2018 he met with the assigned ADA who asked him to serve subpoenas on three witnesses at their home address in Manhattan. On April 4, he went to the apartment. Nobody answered the door, so he slid a copy of each subpoena under the door. Connelly's next involvement with this case was on April 12. On that date, Connelly went to Elsa Arias's place of employment in Long Island and was able to connect with her. He served with her with a subpoena requiring her attendance at trial on June 8, the next trial date and also provided her with subpoenas for her to give her sons. Ms. Arias told Connelly that since being evicted from her apartment she was living on the street, but she provided a contact telephone number to Connelly and told him that she would comply with the subpoena and testify on June 8.
Following Connelly's testimony at the 30.30 hearing, the Court and defense counsel questioned the assigned ADA who explained that he filed the COR at issue after hearing from Connelly that Ms. Arias had been located and agreed to comply with the subpoena requiring her attendance on the next court date of June 8. The ADA explained that after service of the subpoena, he received numerous text messages from Ms. Arias using "a lot of derogatory and profane language," to express her distress that the case was still pending. However, in a telephone conversation in early May, Ms. Arias assured the assigned ADA that she intended to comply with the subpoena served on her and appear in court on June 8. In fact, Ms. Arias did appear on that date.
The assigned ADA also provided the Court with a copy of an email he sent to defense [*3]counsel on April 13, telling her that Ms. Arias had been served with a subpoena and indicated that she understood the need to be in Court on June 8. While the other witnesses had not been served, the ADA was prepared to proceed to trial without them. Emails provided to the Court show that the lawyers were unable to find a mutually convenient date for trial prior to June 8.
Defendant argues that because the COR was filed upon the witness's agreement to appear on a future date, it was an indication of future rather than present readiness and therefore illusory. For the following reasons, the Court disagrees. The Court of Appeals has made clear that to prove "present readiness" the People must demonstrate that they "have done all that is required of them to bring the case to a point where it may be tried." People v. England, 84 NY2d 1, 6 (1994); See also People v. Sherman, 24 Misc 3d 344, 347-348 (Crim. Ct. NY Cty. 2009)(where all other steps to prepare a case have been taken, the People's statement that they have been in contact with the victim and that their intention is to go forward to trial sufficiently indicates their readiness for trial); But see, People v. Migliaccio, 2017 NY Slip Op 50909(U) (statement of readiness illusory when People had never spoken to the witness and offered no proof that they could proceed to trial without her).
An analysis of the circumstances of this case make plain that on April 12, 2018, the People had done all that was required of them to bring the case to a point that it could be tried. The People had located the witness whom they deemed sufficient to prove their case and secured her commitment to comply with a Court subpoena. Of course, the People were not entitled to subpoena her for a date other than a trial date; indeed, to do so would have been a serious ethical breach. Thus, the only option available to the People — serving the witness with a subpoena for the next court date — had been successfully employed by them. Significantly, the fact that the date set for trial was far in the future was largely in consideration of the defendant and to spare him the need to come to Court only to learn that the People were not ready for trial.
Once they had located Ms. Arias at her place of employment, obtained a current telephone number and obtained her assurance that she would testify, the People were legitimately positioned to answer ready. While their specific expectation was for the witness to appear on a future date, they knew where and how to reach her and that she was amenable to subpoena. Had the parties been able to settle upon an earlier, mutually convenient trial date, the People could have moved forward at that time. As such, the speedy trial clock was stopped on the date the COR was filed. The time from April 12 through June 8, 2018 is therefore excludable.
Speedy Trial Analysis
CPL §30.30(1)(a) requires dismissal of an indictment if the People are not ready for trial within six months of the commencement of the action, in this case 182 days, absent excludable time. In calculating time pursuant to CPL §30.30(1)(a), the Court must compute the time between the filing of the accusatory instrument and the People's statement of readiness, subtracting any time which is excluded pursuant to the statue and adding any post-readiness delays that are attributable to People which are not eligible for an exclusion. See People v. Cortes, 80 NY2d 201, 208 (1992). Based on the analysis below, the Court finds a total of 126 days chargeable to the People.
December 17, 2016 to February 2, 2017: 47 days charged
Both parties agree that the time from the defendant's arrest on December 17, 2016 until his Supreme Court arraignment on February 2, 2017, is chargeable to the People.
February 2, 2017 to April 27, 2017: 0 days charged
On February 2, 2017, the defendant requested time for possible disposition and the matter was adjourned on consent. Both parties agree that this time is excludable.
April 27, 2017 to June 8, 2017: 0 days charged
From April 27, 2017 to June 8, 2016, there was no disposition. The court set a motion schedule and adjourned the matter for the court's decision. Both parties agree that this adjournment is excludable.
June 8, 2017 to August 14, 2017: 0 days charged
On June 8, 2017, the court rendered a decision on the defendant's motion and the matter was adjourned to August 14, 2017for hearings and trial. "People are permitted a reasonable period time after hearings are ordered in which to prepare for trial." People v. Green, 90 AD2d 705 (1st Dept. 1982). Both parties agree this time is excludable.
August 14 to September 5, 2017: 22 days charged
On August 14, the People announced they were not ready for hearings and trial. The matter was adjourned to September 5, 2017 for hearings and trial. Both parties agree this time-period is charged to the People.
September 5 to October 3, 2017: 0 days charged
The People announced not ready for hearings and trial and the matter was adjourned to October 3, 20l7. After the calendar call, on September 5, 2017, the People served a certificate of readiness. The parties agree that the filing of the certificate of readiness stopped the clock.
October 3 to November 13, 2017: 9 days charged
On October 3, 2017, the People announced not ready and requested October 12, 2017, for hearings and trial. Because the case was in post-readiness posture, the People are only charged with the time until the date they requested.
November 13 to December 11, 2017: 7 days charged
On November 13, 2017, the People announced not ready for hearings and trial and requested November 20, 2017. The matter was adjourned to December 11, 2017. Because the case was in post-readiness posture, the People are only charged with the time until the date they requested.
December 11, 2017 to February 1, 2018: 0 days charged
On December 11, 2017, the People announced ready for hearings and trial. Defense counsel announced not ready since he was on trial in another matter. This time is excludable.
February 1 to February 8, 2018: 7 days charged
On February 1, 2018, the People announced not ready for hearings and trial and requested February 8, 2018. The period is chargeable to the People.
February 8 to February 23, 2018: 14 days charged
On February 8, 2018 the People announced not ready for hearings and trial because the assigned ADA was on trial. The People requested February 22, 2018. Because the case was in post-readiness posture, the People are only charged with the time until the date they requested.
February 23 to March 23, 2018: 7 days charged
On February 23, 2018, the People announced not ready for hearings and trial. The People requested March 2, 2018, but the defendant requested March 23, 2018. Because the case was in post-readiness posture, the People are only charged with the time until the date they requested.
March 23 to April 6, 2018: 7 days charged
On March 23, 2018, the People announced not ready for hearings and trial and requested March 30, 2018. The defendant requested April 6, 2018. Because the case was in post-readiness [*4]posture, the People are only charged with the time until the date they requested.
April 6 to April 9, 2018: 3 days charged
On April 6, 2018, the People announced not ready for trial because the ADA was out of the office. The Court adjourned the case to April 9. This time is charged.
April 9 to June 8, 2018: 3 days charged
Please see the Court's extensive analysis of this adjournment above.
Conclusion
Based on the Court's analysis, the People are charged with 126 days which exceeds their time in which to answer ready for trial. Accordingly, the defendant's motion to dismiss for lack of speedy trial is denied.
This opinion shall constitute the decision and order of the Court.
Dated: September 7, 2018
New York, NY
________________________
Ann E. Scherzer
Acting Supreme Court Justice Footnotes
Footnote 1:A detailed analysis of the chargeable time until April 9 follows the Court's analysis of the central issue in this motion, the validity of the April 12 certificate of readiness.
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