People v Talavera

[*1] People v Talavera 2018 NY Slip Op 51800(U) Decided on October 15, 2018 City Court Of Troy, Rensselaer County Maier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2018
City Court of Troy, Rensselaer County

The People of the State of New York, Plaintiff,

against

Amanda M. Talavera, Defendant.



CR-04129-17



APPEARANCES:

HON. JOEL E. ABELOVE.

Rensselaer County District Attorney

(George B. Sexton, Esq., of Counsel)

Attorney for the People

JOHN C. TURI, ESQ.

Rensselaer County Public Defender

(William Roberts, Esq., of Counsel)

Attorney for the Defendant
Christopher T. Maier, J.

The above named defendant stands charged with one count of the crime of Unauthorized Use of a Vehicle in the Third Degree, in violation of Section 165.05[3] of the Penal Law of the State of New York. The defendant has filed a Motion to Dismiss dated the 20th day of July, 2018 and the People have filed an Affirmation in Opposition dated the 24th day of August, 2018 in response and in opposition thereto. The defendant filed a Memorandum of Law on September 7, 2018 in support of her previously filed Motion to Dismiss.

The defendant seeks dismissal of the pending charge arguing that her right to a speedy trial has been violated. When a defendant seeks dismissal for a violation of the right to a speedy trial, she must meet the initial burden of setting forth sworn allegations of fact that there has been an unexcused delay in excess of the statutory maximum period of time to declare readiness for trial (see People v. Santos, 68 NY2d 860, 861 [1986]). Once the defendant meets that initial burden, the People must show that any delay beyond the statutory period of the time within which to [*2]declare readiness is not chargeable to the People and should be excluded from calculating speedy trial time (id; People v. Berkowitz, 50 NY2d 333, 349 [1980]).

Here, it is undisputed that the action was commenced with the filing of an accusatory instrument on May 22, 2017 (CPL 1.20[17]); an arrest warrant was issued on May 31, 2017. It is also undisputed that the defendant was arraigned on May 22, 2018, one year later. Accordingly, the defendant has met her initial burden of showing that more than 90 days has elapsed since the commencement of the action during which the prosecution did not announce readiness for trial.

In their response, the People raise several periods of time, not exclusively limited to the pre-arraignment period raised by the defense, which they allege should be excluded in determining whether a timely declaration of readiness was made. The Court will exclusively focus on the period between commencement of the action and the arraignment as that period is the sole basis of the defendant's argument. Generally, in determining whether the People have met their statutory obligation of announcing a timely notice of the readiness, the Court must calculate the time between the commencement of the action and the People's declaration of readiness, less any time periods that are excludable by statute (People v. Cortes, 80 NY2d 201, 208 [1992]).

The People argue that the period from commencement to arraignment is excludable for speedy trial calculations because the People were unaware that a criminal action had been commenced and that lack of knowledge constitutes an exceptional circumstance under CPL 30.30 [4][g]. It is the People's position that they were not involved in the preparation of the charges and unaware of the pending matter until the arraignment of the defendant on May 22, 2018. CPL §110.20 requires either the police agency or the court clerk to transmit the accusatory instrument to the District Attorney's office upon or prior to arraignment (emphasis added). The People were provided with the accusatory instrument at the time of arraignment by the court. Accordingly, the People argue that the period of time from May 22, 2017[FN1] to May 22, 2018 must be excluded from calculation.

The People cite People v. Smietana in support of their position (98 NY2d 336 [2002]). In Smietana, the police filed a criminal complaint on June 5, 1998 in the local criminal court and the court then issued a summons. The defendant then appeared in court on July 14, 1998 when he picked up the summons, was arraigned and the People were advised of the charges. The applicable statute of limitations in that case was thirty days[FN2] which expired before the defendant appeared for arraignment, rendering it impossible for the People to announce readiness timely (98 NY2d at 342). The Court of Appeals noted that it is "axiomatic that the People" cannot be ready for a "case they do not know exists." (98 NY2d 342). Accordingly, the Court excluded the pre-arraignment period pursuant to CPL 30.30[4][g] finding exceptional circumstances should apply.

Here, after the arrest warrant was issued, there are no allegations made by the People that any effort was made to effectuate the warrant. Dissenting in Smietana, Judge Kaye noted, "The Court should not recognize an exceptional circumstance based on the District Attorney's own conceded policy of remaining unaware, until arraignment, of accusatory instruments filed by the police." (People v. Smietana, 98 NY2d at 343). Further, the defense argues in their memorandum of law, inter alia, that the People must do everything they can to bring a case to trial (People v. Miller, 113 AD3d 885 [3d Dept 2014]). However, as the Court of Appeals noted, the District Attorney is under no obligation to monitor the filings in local court (98 NY2d at 342). Once the People have identified periods of time in which they believe should be excluded from calculation, it is incumbent upon the defendant to identify factual or legal impediments in using those exclusions to preserve her objection on appeal (People v. Goode, 87 NY2d 1046 [1996]). The failure of the defendant to challenge the People's assertion in her reply papers[FN3] allows the court to exclude those periods raised by the prosecution and presents no factual dispute that would require a hearing (People v. Daniels, 36 AD3d 502 [1st Dept 2007]; see also People v. Fleming, 13 AD3d 102 [1st Dept 2004]). The Court is constrained to follow the dictates of the majority holding in Smietana and exclude from calculation the pre-arraignment delay. Further support for this Court's holding can be found in People v. Snell. Following Smietana, the Fourth Department held that the People cannot be ready for trial without knowing that the action in question had been commenced (People v. Snell, 158 AD3d 1067 [4th Dept 2018]). The Court in People v. LaBounty, 104 AD2d 202 [4th Dept 1984]) decided before Smietana, professed similar reasoning, holding that the People's unawareness of the commencement of an action represented exceptional circumstance under CPL 30.30[4][g] as it was a circumstance beyond the People's control that prevented them from being ready within the statutorily mandated time limit (104 AD2d at 205). Interestingly, the LaBounty Court expressed their view that the holding comported with the "judicial recognition that CPL §30.30 is a 'readiness rule'' not a prompt trial rule (104 AD2d at 205). As one commentator noted, Smietana may be viewed as an expansive reading of "exceptional circumstances" under CPL §30.30, but clearly the court declined to view the police and the District Attorney's office as a single entity in this context (7 NY Prac. New York Pretrial Criminal Procedure §9:43 [2d ed. Lawrence Marx]).

Accordingly the Court finds that the pre-arraignment period is excludable time for the purposes of calculating speedy trial limitations and therefore the defendant's motion is denied.

This shall constitute the Decision and Order of the Court.

So ordered.

Dated: October 15, 2018

Troy, New York

_________________

Christopher T. Maier

Troy City Court Judge Footnotes

Footnote 1:May 22, 2017 is noted on the Troy Police Department Data Sheet filed with the court on that date.

Footnote 2:The defendant in Smietana was originally charged with a Criminal Contempt charge and the violation of Harassment in the Second degree. The trial court dismissed the Criminal Contempt charge for facial insufficiency and then retroactively reduced the speedy trial time to 30 days rather than 90 days ordinarily allowed under the statute. The Court held since the People failed to object to the holding of the trial court on appeal, it was waived leaving the Court to analyzed the speedy trial time based on a 30 day time frame.

Footnote 3:The defendant did not label the memorandum of law as a Reply to the People's response to her motion to dismiss, however the court will consider it as a reply.