People v Bing
Annotate this CaseDecided on September 17, 2018
City Court of Mount Vernon
The People of the State of New York, Plaintiff,
against
Ricardo Bing, Defendant.
15-0144
Westchester County District Attorney
Mount Vernon Branch
Lawrence Pruzansky, Esq.
Attorney for Defendant
860 Grand Concourse, Suite 1-E
Bronx, New York 10451
Adrian N. Armstrong, J.
The defendant stands charged by misdemeanor information with one count of Criminal Obstruction of Breathing, in violation of P.L. § 121.11; one count of Assault in the Third Degree in violation of P.L. § 120.00(1); and one count of Harassment in the Second Degree in violation of P.L. § 240.26(1). Defendant now moves to dismiss the accusatory instrument on speedy trial grounds pursuant to C.P.L. § 30.30(1)(b).
The Defendant contends that the Information should be dismissed on speedy trial grounds because the People failed to use due diligence in locating him within the applicable ninety (90) day period. On January 21, 2015, the People filed an arrest warrant via a misdemeanor information with the Mount Vernon City Court, charging defendant with the above-mentioned charges from an incident that occurred on January 20, 2015, in the City of Mount Vernon. Accompanying the Information, the People served and filed a supporting deposition from the victim. The Court issued an arrest warrant for the defendant on the same date. On June 30, 2018, defendant was stopped by the Eastchester Police for a traffic violation. The Eastchester Police brought the defendant to the Mount Vernon Police Department based upon the outstanding warrant. On July 2, 2018 defendant was produced in the Mount Vernon City Court, represented by counsel, arraigned and the People declared readiness for trial.
Pursuant to C.P.L. § 30.30(1)(b), the People in this case are required to be ready for trial within ninety (90) days of the commencement of the criminal action. The rule articulated in C.P.L. 30.30(1) controls the calculation of the readiness period throughout a criminal action; the most serious offense charged in the criminal action, measured from the date of filing of the first [*2]accusatory instrument, controls the calculation of the readiness period throughout the action. The point of commencement of an action for speedy trial purposes is the filing of the first accusatory instrument. People v Lomax, 50 NY2d 351(1980); see also People v Stirrup, 91 NY2d 434 (1998). The actual date of filing is not includable in the calculation People v Stiles, 70 NY2d 765 (1987). The People filed the misdemeanor information with the Court on January 20, 2015, and as such, that is the date of the commencement of the action. See People v. Smietana, 98 NY2d 336 (2002); People v. Hauben, 12 Misc 3d 1172A (Dist. Ct. Nassau 2006); People v. Griffen, 141 Misc 2d 627 (Crim. Ct. Queens Cty. 1988). The defendant was arraigned on the accusatory instrument on July 2, 2018, almost three and a half years after the warrant was issued and this action commenced.
In computing the time within which the People must be ready for trial, the court must exclude "the period of delay resulting from the absence or unavailability of the defendant" (CPL 30.30 [4] [c] [I]; see People v Bratton, 103 AD2d 368 [1984], affd on op below 65 NY2d 675 [1985]). "A defendant must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence" (CPL 30.30 [4] [c] [I]; see People v Maldonado, 210 AD2d 259 [1994]).
In the motion papers, defendant states that he was never made aware that a criminal action had been started against him, until he was arrested on June 30, 2018. Defendant also argues that the prosecution failed to exercise due diligence to locate him.
In opposition, the People allege that from the time of the filing of the accusatory instrument up until defendant's arrest the police exercised due diligence in trying to locate the defendant, and as such, the People argue that the entire time between the issuance of the arrest warrant on January 20, 2015 and his arraignment in this Court on July 2, 2018, is excludable. The People state that on January 22, 2015, members of the Mount Vernon Police Department attempted to locate the defendant at his last known address at 4765 Carpenter Avenue, Apt 2A, Bronx, New York, and knocked on the door, but were unsuccessful in locating the defendant. Members of the Mount Vernon Police Department allegedly also went to the aforementioned Bronx address on April 9, 2015 and then again on April 29, 2018 but were also unsuccessful in locating the defendant. Additionally, the People allege that officers of the Mount Vernon Police Department entered defendant's information in a nationwide extradition database in an attempt to locate defendant. The People maintain there were no hits on defendant's arrest warrant.
Here, the defendant met his initial burden on his motion by demonstrating that the People failed to declare their readiness for trial within the time required by the statute. The burden then shifted to the People to demonstrate that they were ready for trial on a timely basis because a sufficient portion of the time between commencement and readiness should be excluded from the calculation (see People v Luperon, 85 NY2d 71, 77-78 [1995]; People v Price, 61 AD3d 127, 129 [2009]).
Pursuant to CPL 210.45, unless the People's opposition "conclusively refuted" defendant's motion "by unquestionable documentary proof," this court can not deny the motion without conducting a hearing (CPL 210.45 [5] [c]). Here, while the People's opposition sufficiently demonstrated "that there [wa]s a factual dispute which must be resolved at a hearing" (People v Gruden, 42 NY2d 214, 217 [1977]), it was inadequate to warrant summary denial of the motion. As such, defendant was entitled to the hearing he requested in his moving papers (CPL 210.45 [*3][5] [c]). Based upon the foregoing, the Court directs that a CPL § 30.30 hearing be held to determine whether the People have satisfied their statutory obligation pursuant to CPL § 30.30(1)(b).
This constitutes the Decision and Order of this Court.
Dated: September 17, 2018
Mount Vernon, New York
__________________________
HON. ADRIAN N. ARMSTRONG
City Court Judge of Mount Vernon
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