People v gellatly
Annotate this CaseDecided on November 19, 2018
Criminal Court of the City of New York, Kings County
The People Of The State Of New York
against
Andrew Gellatly, Defendant.
2017CK003130
Eric Gonzalez
Kings County District Attorney
by ADA Elizabeth Lanza
350 Jay Street, 14th Floor
Brooklyn, New York 11201
(718) 250-4945
Jose Rios, Esq.
Rios Law Firm P.C.
Attorney for Defendant
2560 Matthews Avenue — 1st Floor
Bronx, NY 10467
(347) 346-8700
Adam Perlmutter, J.
On December 14, 2017, defendant was arraigned on an accusatory instrument, charging him with one misdemeanor, and two traffic infractions, specifically: Driving While Intoxicated, common-law, Vehicle and Traffic Law (VTL) § 1192 (3); Driving While Ability Impaired by Alcohol, VTL 1192 (1); and Leaving the Scene of a Property Damage Auto Accident without Reporting, VTL 600 (1) (a). The People alleged that defendant, among other things, operated a BMW motor vehicle on a public highway while in an intoxicated condition and while his ability to operate the vehicle was impaired by alcohol.
The People did not announce readiness for trial and the case was adjourned to January 19, 2018, for conversion. On January 19, 2018, the People did not announce readiness for trial and the case was adjourned to February 23, 2018, for conversion. On January 30, 2018, the People filed an off-calendar superseding information and supporting deposition. At that time, the People announced readiness for trial.
On October 9, 2018, defendant filed a motion to dismiss the charges on the ground that he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law § 30.30. On October 30, 2018, the People filed their opposition to defendant's motion.
Specifically, defendant contends the People should be charged under CPL 30.30 with 117 days of non-excludable time because the People have not been ready multiple times. The People respond that they should only be charged with 62 days of non-excludable time since they are entitled to multiple exclusions.
For the reasons below, defendant's motion is denied.
Speedy Trial Motion
CPL 30.30
Pursuant to CPL 30.30 (1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument (People v Walton, 165 Misc 2d 672, 674 [Crim Ct, Richmond County 1995]). Where the highest charge against a defendant is punishable by a sentence of more than three months, the People are required to state their readiness for trial within 90 days of commencing the criminal action (CPL 30.30 [1] [b]). Since VTL 1192 (3) is punishable by a term of imprisonment of up to a year, the People had 90 days from December 14, 2017, to be ready for trial (VTL 1193[1][b]).
The defendant has the initial burden of showing through sworn allegations of fact that there has been an inexcusable delay beyond the time allotted by the statute (People v Santos, 68 NY2d 859, 861 [1986]). Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time to withstand a motion to dismiss (id.). It is the People's burden to ensure "in the first instance" that the record of the proceedings is sufficiently clear to enable the court considering the subsequent 30.30 motion to make an informed decision as to whether the People should be charged (People v Cortes, 80 NY2d 201, 215-216 [1992]).
Based on the review of the Court file, and the submissions of the parties, the Court finds as follows:
December 14, 2017 to January 19, 2018
Defendant was arraigned on December 14, 2017. The People did not announce readiness for trial and the case was adjourned to January 19, 2018, for conversion.
Since all pre-conversion time must be charged to the prosecutor in the absence of an express consent to the adjournment by the defendant, the People are charged for the 36 days between December 14, 2017 to January 19, 2018 (see People v Liotta, 79 NY2d 841 [1992]; People v Battaglia, 187 AD2d 808 [3d Dept 1992]).
Accordingly, the Court first finds that the People are charged 36 days for the period from December 14, 2017 to January 19, 2018. [36 days charged, 36 days total].
January 19, 2018 to February 23, 2018
On January 19, 2018, the People did not announce readiness for trial and the case was adjourned to February 23, 2018, for conversion. On January 30, 2018, the People filed an off-calendar superseding information and annexed supporting deposition. At that time, the People announced readiness for trial.
Since, as stated supra, all pre-conversion time must be charged to the prosecutor in the absence of an express consent to the adjournment by the defendant, the People are charged for the 11 days between January 19 and January 30, 2018. On the other hand, to avoid liability for the remainder of the adjournment period, the People may file "a written notice of readiness . . . to both defense counsel and the appropriate court clerk, to be placed in the original record" [*2](People v Kendzia, 64 NY2d 331, 337 [1985]). Since the People filed a converted superseding information and announced readiness, they are not charged the time between January 30 and February 23, 2018.
Accordingly, the Court first finds that the People are charged 11 days for the period from January 19 and January 30, 2018. [11 days charged, 47 days total].
February 23, 2018 to April 6, 2018
On February 23, 2018, the case was adjourned to April 6, 2018, for discovery by stipulation (DBS).
Since DBS is in lieu of discovery by motion in Kings County, adjournments for DBS are excluded from speedy trial calculations, irrespective of the People's readiness for trial (CPL 30.30 [4] [a]; People v Dorilas, 19 Misc 3d 75 [App Term, 2nd and 11th Jud Dists 2008]; People v Khachiyan, 194 Misc 2d 161, 166 [Crim Ct, Kings County 2002]; People v Smalls, 163 Misc 2d 369, 371 [Crim Ct, Kings County 1994]).
The Court finds that the period from February 23, 2018 to April 6, 2018, is excludable (CPL 30.30 [4] [a]). [0 days charged, 47 days total].
April 6, 2018 to April 24, 2018
On April 6, 2018, the People served and filed DBS. The People did not serve the Intoxicated Driver Testing Unit (IDTU) video. The case was adjourned to April 24, 2018, for production of the IDTU video and an offer on the case.
The Court (Calabrese, J.) charged the People with 18 days for this adjournment because it agreed with defendant's contention that the People's delay in producing the IDTU video pursuant to DBS was unreasonable (cf., Dorilas, 19 Misc 3d at 77 [time excluded where defense counsel remained silent in the face of a statement by the court that the court was adjourning the case for the purpose of DBS and defendant made no claim that the period of time for DBS was unreasonable).
Accordingly, the Court first finds that the People are charged 18 days for the period from April 6, 2018 to April 24, 2018 [18 days charged, 65 days total].
April 24, 2018 to May 15, 2018
On April 24, 2018, the People served and filed the IDTU video. The Court marked all discovery complete. The case was adjourned to May 15, 2018, for defendant to retain private counsel.
Since the People are not charged for adjournments requested or consented to by defendant, the Court finds that the People are not charged for this adjournment (see People v Worley, 66 NY2d 523, 527 [1985]). Indeed, postreadiness delay is chargeable to the People only if "it is the People's dereliction that [prevents] the defendant's trial from going forward" (People v McKenna, 76 NY2d 59, 64 [1990]).
The Court finds that the period from April 24, 2018 to May 15, 2018, is excludable (CPL 30.30 [4] [b]) [0 days charged, 65 days total].
May 15, 2018 to June 28, 2018
On May 25, 2018, defendant appeared with privately retained counsel. The case was adjourned to June 28, 2018 for hearings and trial.
Defendant does not contend the People should be charged for this adjournment.Accordingly, under the circumstances of this adjournment, the Court declines to charge the People with any time.
The Court finds that the period from May 15, 2018 to June 28, 2018, is excludable [0 days charged, 65 days total].
June 28, 2018 to September 5, 2018
On June 28, 2018, the People announced, "not ready" because the assigned Assistant District Attorney (ADA) was not available. The People requested an adjournment for seven days. Defendant, however, was not present in Court. The Court stayed a bench warrant because defendant had to tend to his mother, who was ill. The case was adjourned to September 5, 2018.
Despite defendant's failure to appear, the People concede that they are chargeable for this time. Defendant does not contend that the People should be charged for this adjournment.
The courts have recognized that the time during which a defendant is absent, and a bench warrant is stayed is excludable pursuant to CPL 30.30 (4) (c). "Whether or not the People announce ready, the subsequent period is properly excluded from the time in which the People are required to be ready because the defendant failed to appear and a bench warrant was issued and stayed against him" (People v Odjody, 35 Misc 3d 1221 [Crim Ct., Kings County 2012]; see also People v Notholt, 242 AD2d 251, 254 [1st Dept 1997]; People v Benjamin, 292 AD2d 191 [1st Dept], lv to appeal denied, 739 NYS2d 667 [2002]).
Therefore, despite the People's concession, the Court finds that the period from June 28 to September 5, 2018 is excludable (CPL 30.30 [4] [c] [i]). [0 days charged, 65 days total].
September 5, 2018 to October 9, 2018
On September 5, 2018, the People announced, "not ready" because the arresting officer was not available. The People requested an adjournment for eight days.
As stated supra, the People are only charged with the time they requested.
The Court finds that the People are charged the eight days requested for the period from September 5 to October 9, 2018. [8 days charged, 72 days total].
October 9, 2018 to November 19, 2018
On October 9, 2018, defendant filed the instant motion to dismiss on CPL 30.30 grounds. The case was adjourned to November 19, 2018, for decision, hearings, and trial.
Since the period of delay resulting from pre-trial motions is excludable, the People are not charged the time from October 9, 2018 to November 19, 2018 (CPL 30.30[4] [a]). [0 days charged, 72 days total].
As discussed supra, this court finds that the People are charged with 72 days of non-excludable time which is less than the statutory speedy trial time for this case. Accordingly, defendant's motion to dismiss pursuant to CPL 30.30 is denied.
Conclusion
Accordingly, for the foregoing reasons, defendant's motion to dismiss is denied.
The foregoing constitutes the Decision and Order of the court.
Dated: Kings County, New York
November 19, 2018
Hon. Adam Perlmutter
J.C.C.
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