People v Lewis
Annotate this CaseDecided on October 24, 2019
Criminal Court of the City of New York, Kings County
The People of the State of New York
against
Robert Lewis, Defendant.
CR-051190-18KN
Michael D. Kitsis, J.
The defendant, charged with Assault in the Third Degree (P.L. § 120.00(1)); Criminal Obstruction of Breathing or Blood Circulation (P.L. § 121.11(A)); Attempted Assault in the Third Degree (P.L. §§ 110.00/120.00(1)); Menacing in the Third Degree (P.L. § 120.15); and Harassment in the Second Degree (P.L. § 240.26(1)); moves for an order dismissing the information pursuant to C.P.L. §§ 30.30(1)(b) and 30.20(1).
After a careful review of the defendant's motion, the People's response,[FN1] the defendant's reply, and the transcripts of relevant calendar calls, the motion to dismiss pursuant to C.P.L. §§ 30.20, 30.30 is denied.
November 27, 2018 to January 28, 2019
On November 27, 2018, the defendant was arraigned on a misdemeanor complaint on which the highest charges were the two Class A misdemeanors set forth above. Thus, the People had 90 days to be ready to proceed to trial. The defendant was released on his own recognizance and the matter was adjourned to January 28, 2019, for conversion.
Accordingly, the People are charged with 62 days of this adjournment.
62 chargeable days.
January 28, 2019 to March 5, 2019
On January 28, 2019, the People did not have a supporting deposition and the case was adjourned again for conversion to March 5, 2019. On February 15, 2019, the People served and filed a Statement of Readiness along with a superseding information and a supporting deposition signed by Shahmyre Haile.
Accordingly, the People are charged with 18 days of this adjournment.
18 chargeable days.
March 5, 2019 — April 8, 2019
On March 5, 2019, the case was adjourned for Discovery by Stipulation. Because adjournments for discovery are designated in the statute as "other proceedings concerning the defendant," this time period is excludable from the 30.30 calculation. See C.P.L. §30.30(4)(a).
0 chargeable days.
April 8, 2019 — May 13, 2019
On April 8, 2019, the People were without discovery and directed to provide it to the defendant off-calendar by April 19, 2019. The case was adjourned for hearings and trial to May 13, 2019. This adjournment is excludable pursuant to People v Greene, 223 AD2d 474 (1st Dept), appeal denied 88 NY2d 879 (1996); People v Hernandez, 268 AD2d 344 (1st Dept), lv denied 95 NY2d 253 (2000); People v Lucas, 25 Misc 3d 1213(A), (Crim Ct, Kings County 2009).
0 chargeable days.
May 13, 2019 — June 17, 2019
On May 13, 2019, the People were not ready for trial because the arresting officer was not available and requested 1 day. The case was adjourned to June 17, 2019 for hearings and trial. Because the People had previously announced their readiness to proceed, they are not charged for the time period of the adjournment in excess of the time they requested. People v. Nielsen, 306 AD2d 500 (2d Dept. 2003); People v. Williams, 229 AD2d 603 (2d Dept. 1996).
1 chargeable day.
June 17, 2019 to July 15, 2019
On June 17, 2019, the People announced ready for trial and stated that the arresting officer was present. Defense counsel was not available, and the case was adjourned to July 15, 2019 for hearings and trial. This constitutes an excludable adjournment because it was granted at the defendant's request. People v. Worley, 66 NY2d 523 (1985).
0 chargeable days.
July 15, 2019 to August 12, 2019
On July 15, 2019, the People were not ready because the arresting officer was not available and requested one day. The case was adjourned for hearings and trial to August 12, 2019.
1 chargeable day.
August 12, 2019 to September 10, 2019
On August 12, 2019, the People were not ready and requested three days. The People conceded 82 days of chargeable time. The Court noted that there was no defense counsel present when the case was called at 10:40 A.M. Uninformed as to whether defense counsel would be coming to court, Judge Darkeh asked the defendant whether he had been in touch with his attorney. The defendant stated that they had not communicated since the last time he had come to court. Judge Darkeh told the defendant that the case had been called because court begins at 9:30 A.M. The Assistant District Attorney conveyed the People's offer, and stated that to that point there had been no plea negotiations with defense counsel. Judge Darkeh told the defendant that he could speak with his attorney, and if they decided to resolve the case she would recall it that day. Still in the dark as to whether counsel planned to appear, Judge Darkeh then asked the defendant whether he wanted to return in the three days the People had requested, or to come [*2]back to court after a longer adjournment. After working out an adjourn date of the defendant's choosing and after consulting the People, the case was adjourned to September 10, 2019 for hearings and trial. Counsel arrived twenty minutes later, and a notation in the court file indicates, "Notified of adj. date. Came in. [Defense attorney's colleague] 11:00 A.M."
This adjournment constitutes a principal point of disagreement between the parties. The defendant argues that the People should be charged for the three days they requested; the People argue that this adjournment should be excluded because the defendant was present in court without his attorney and therefore the People's readiness or lack thereof is irrelevant.
September 10, 2019 to September 16, 2019
On September 10, 2019, the People were not ready because the ADA was newly assigned and requested 6 days. The case was adjourned to September 16, 2019.
6 chargeable days.
September 16, 2019 — October 24, 2019
On September 16, 2019, the People announced they were ready for hearings and trial. Defense counsel filed the instant motion to dismiss, and the case was adjourned for the People's response and the Court's decision.
The Court finds the defendant's motion to be timely under C.P.L. § 170.35(2) (requiring motions to dismiss based on the denial of a right to a speedy trial to be filed prior to the commencement of trial or entry of guilty plea). See People v. Lawrence, 64 NY2d 200, 206 (1984).
Under the defendant's calculation, 91 days are chargeable to the People. The People contend that the three days from the August 12 adjournment should not be included, which would put the total chargeable time at 88 days. Additionally, the People argue that, if the defendant's calculation is correct, the 90th day would have fallen on a Sunday. Therefore, under General Construction Law § 25-a(1), the People would have until the following business day (in this case, Monday, September 16, 2019) to be ready, and the People did announce their readiness for trial on that day.
The Appellate Term, Second Department, explicitly applied Section 25-a(1) to C.P.L. § 30.30 in People v. Powell, 179 Misc 2d 1047 (2d Dept. 1999) and this Court is bound by that decision. Observing that "[t]he General Construction Law should be read into every statute subsequently enacted, unless the wording of said statute plainly expresses a contrary intent" and that C.P.L. § 30.30 "does not express a contrary intent," the Second Department applied the provisions of § 25-a(1) of the General Construction Law and held that "the People's time to announce their readiness was extended to the next business day." 179 Misc 2d at 1048.
The Appellate Division, Third Department, adopted the Powell court's reasoning in People v. Mandela, 142 AD3d 81 (3d Dept. 2016). In applying Gen. Constr. L. § 25-a to C.P.L. § 30.30, the court ruled: "Nothing in the language of C.P.L. 30.30(1)(a) mentions weekends or holidays or otherwise indicates a legislative intent that General Construction Law § 25-a should not be applied in calculating the expiration of the speedy trial period." 142 AD3d at 86. See also People v. Stiles, 70 NY2d 765 (1987) (applying Gen. Constr. L. § 25-a to C.P.L. § 30.30). Therefore, in a worst case scenario for the People, they declared their readiness on day 90.
As an alternative holding, the Court finds that the three days requested by the People on August 12, 2019 are not includable in the § 30.30 calculation because on that day the defendant was without counsel within the meaning of C.P.L. § 30.30(4)(f).
Courts faced with the question of the includability of speedy trial time when a defense attorney is not present at a calendar call have relied on two separate subparagraphs of C.P.L. § [*3]30.30(4). Subsection (4)(b) states that "the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel" is excludable from the § 30.30 calculation. Subsection (4)(f) states that the period "during which the defendant is without counsel through no fault of the court" is excludable. Different lines of decisional law have developed under each of the two provisions, and neither line, with limited exception, recognizes the existence of the other.
The case law examining the consent exclusion under Subsection (4)(b) began with People v. Liotta, 79 NY2d 841 (1992). In Liotta, the Court of Appeals stated, "The People's contention that a defendant consents to an adjournment either by failing to object to the adjournment, or by defense counsel's failure to appear is meritless." Id. at 843. Thus, defense counsel's failure to appear does not constitute a consent adjournment rendering the time period excludable under C.P.L. § 30.30(4)(b).
Subsequent cases citing Subsection (4)(b) as authority largely rely on Liotta to establish the rule that for an adjournment to be excludable under the consent exception of § 30.30(4)(b), such consent must be clearly expressed on the record, and the People bear the burden of ensuring a clear record is made. E.g., People v. Smith, 82 NY2d 676 (1993). Silence or accommodation of the request for an adjournment does not constitute consent by the defense. However, time is excludable when the defense counsel is not present because of some other engagement, and so the adjournment is found to be at the request of, or with the consent of, the defendant. Thus, the First Department has found it to be error to charge the People for an adjournment, regardless of their state of readiness, when defense counsel files a notice of actual engagement and requests an adjournment, because doing so triggers the statutory exclusion provided in § 30.30(4)(b). People v. Cambridge, 230 AD2d 649, 650 (1st Dept. 1996). See also People v. Barden, 27 NY3d 550 (2016) (time period requested by defense attorney to conduct another trial should be excluded); People v. Brown, 149 AD3d 584, 584 (1st Dept. 2017) (time excludable under § 30.30(4)(b) where defense counsel engaged on a separate trial because "[i]t would have been a physical impossibility for defense counsel to try both cases simultaneously").
Consequently, when defense counsel is actually engaged on another case, any adjournment necessitated, in whole or in part, by that engagement will be deemed to be on the consent of the defendant under § 30.30(4)(b). However, silence from the defense does not constitute consent, and so the absence of defense counsel, without an accompanying affidavit of engagement or request for an adjournment, is not enough to trigger the consent exception of § 30.30(4)(b). Here, there is no indication that defense counsel was actually engaged elsewhere, and there is no indication of consent to the adjournment. Thus, there is no basis to find the August 12 through September 10 adjournment excludable under C.P.L. § 30.30(4)(b).
People v. Liotta never addressed what constitutes a defendant being without counsel under C.P.L. § 30.30(4)(f). While the Court of Appeals has not ruled on whether a defendant is deemed "without counsel, through no fault of the court" for purposes of calculating excludable time under § 30.30(4)(f) because his counsel is not present for the calendar call, a line of appellate cases, starting with People v. Brown, 195 AD2d 310 (1st Dept. 1993) has. Because this line of reasoning has been adopted in three of the four appellate departments, including the Second Department, and because the Court of Appeals has denied leave to hear appeals in the entire line of cases, this Court is bound by Brown and its progeny.
In People v. Brown, the First Department found an adjournment to be excludable, notwithstanding the People's lack of readiness on that date, because defense counsel was not [*4]present in court when the adjournment was sought. 195 AD2d at 311. "The court noted the People's lack of readiness, then adjourned the matter stating that defense counsel was made aware of when she was to appear and that if she did not appear on the adjourn date the court would remove her from the case." Id. Citing C.P.L. § 30.30(4)(f), the court continued, "Since the delay was caused predominantly by defense counsel's absence, the delay should not be chargeable to the People." Id.
Since then, Brown has been cited numerous times for the proposition that adjournments are excludable under C.P.L. § 30.30(4)(f), not just when a defendant does not have an attorney at all, but also if assigned counsel does not appear, regardless of the People's readiness. See e.g., People v. Huger, 167 AD3d 1042 (2d Dept. 2018) (37 day adjournment while DNA results pending and People not ready to proceed nonetheless excludable because counsel for defendant did not appear on scheduled court date); People v. Mannino, 306 AD2d 157, 158 (1st Dept. 2003) ("Moreover, the People's lack of readiness is irrelevant to the determination that when defense counsel has failed to appear for a scheduled court appearance, the delay is nonetheless excludable."); People v. Osorio, 294 AD2d 139, 139 (1st Dept. 2002) (time periods "properly excluded pursuant to C.P.L. § 30.30(4)(f) because of defendant's assigned counsel's failure to appear for the calendar calls"); People v. Douglas, 264 AD2d 671, 671 (1st Dept. 1999) (finding time period "correctly excluded from the time chargeable to the People, pursuant to [C.P.L. § 30.30(4)(f)], based on defense counsel's failure to appear for the calendar calls on December 2 and 14, 1993, regardless of the fact that the People had not yet declared readiness."); People v. David, 253 AD2d 642, 644 (1st Dept. 1998) (time period excluded under subsection (4)(f) when defense attorney was ill and unable to appear in court). All of these cases held the defendant to have been "without counsel" under the meaning of C.P.L. § 30.30(4)(f) based on the failure of defense counsel to appear on the court date, notwithstanding the fact that counsel was in fact assigned.
In People v. Aubin, 245 AD2d 805 (3d Dept. 1997), the Third Department explained this line of reasoning through an analysis of the specific language of C.P.L. § 30.30(4). The court observed that most of the statutory exclusions under § 30.30(4) "restrict[ ] the excluded time to that which actually or reasonably resulted from the identified circumstance[,]" 245 AD2d at 806, and cited to § 30.30(4)(b) as an example. C.P.L. § 30.30(4)(b) excludes "the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel." (Emphasis added). In contrast, § 30.30(4)(f) "contains no similar qualifying language but absolutely excludes 'the period during which the defendant is without counsel through no fault of the court.'" 245 AD2d at 806 (citing C.P.L. § 30.30(4)(f)) (emphasis added). Relying on the distinction in language used by the statute, the Aubin court reasoned:
"Fundamentally, the inclusion of qualifying language in most of the paragraphs of C.P.L. 30.30(4) evinces unmistakable legislative intent that no such limitation was intended in the paragraphs containing no such qualification. We conclude, then, that neither fault on the part of defendant nor causation properly enter into a consideration of time to be excluded under C.P.L. 30.30(4)(f), and all periods during which defendant was unrepresented by counsel must be excluded."245 AD2d 806-07.
Thus, it does not matter how much of the particular adjournment the absence of defense [*5]counsel caused to delay the proceedings; that the defendant was without counsel at the time of the adjournment is sufficient to render the period excludable, regardless of the state of the People's readiness.
The defendant cites to People v. Butler, 81 AD3d 484 (1st Dept. 2011), one of the few cases to find time chargeable to the People notwithstanding the absence of defense counsel. The Butler court held: "Under the circumstances, where the People were not ready, requested an adjournment, and were accommodated by the court, and [defense counsel] appeared within minutes of the calendar call, the 28 days should have been charged to the prosecution." Id. at 486. There, the case had been scheduled for pretrial hearings and was called into the record at 10:40 a.m., when defense counsel was not present but the court was informed by the co-defendant's counsel that he was on his way, and he did in fact appear at 10:45 a.m., when the case was recalled. Id. The Butler court reasoned that this "situation is distinguishable from that found in such cases as People v. Lassiter, 240 AD2d 293 (1st Dept. 1997) and People v. Brown, 195 AD2d 310 (1st Dept. 1993), in that here the court knew that counsel was en route but still granted the adjournment to the People before counsel arrived immediately thereafter." 81 AD3d at 486. However, reading the decisions issued in Brown and Lassiter, it is unclear as to what facts in Brown and Lassiter the Butler court is relying on for distinction. Brown and Lassiter are silent, for instance, as to whether the respective courts were informed that defense counsel was en route at the time the cases were called, or whether defense counsel appeared after the case was adjourned. The decisions in Brown, Lassiter, and their progeny state only that defense counsel was not present at the time the case was scheduled.
The exclusion in subsection (4)(f) applies not merely when a defendant is without counsel; rather, for the adjournment to be excludable, the defendant must be without counsel "through no fault of the court." C.P.L. § 30.30(4)(f). Notwithstanding the fact that in this case an attorney for the defendant did appear after the case had been adjourned on August 12, 2019, there was no communication, with either the court or the defendant, that defense counsel was on her way to the courtroom. Indeed, when asked if he knew where his attorney was, the defendant stated to the court that he had not spoken to his attorney since the last adjournment.[FN2] Butler is thus distinguishable from the case at hand. The Court is mindful of the fact that attorneys frequently have cases calendared in several different courtrooms, often in two or more buildings, and even in more than one county on any given day, and no attorney can appear everywhere first. However, the court expects attorneys who have such competing obligations to use today's ever-more-accessible communication methods to keep courts informed of their whereabouts. Communication is especially critical for cases already in a trial part when lawyers should expect the calendar call to be completed early so that ongoing trials can proceed and new trials can begin promptly.
The Court fully accepts the affirmation of the defense attorney's colleague, who was standing in for the assigned attorney, and who was prepared to proceed on August 12 in the assigned attorney's absence. Despite the emergency she faced that day, a communication from [*6]the covering attorney or a colleague that she was delayed and could be expected around 11:00 A.M. may have caused Judge Darkeh to delay the call of the case until she could arrive. However, since Judge Darkeh had no basis on which to anticipate the arrival of counsel, after waiting over an hour, she took the reasonable step of calling the case and not forcing the defendant to continue to wait indefinitely for his attorney.
The Court is compelled to adhere to the substantial body of case law following Brown and finds that the defendant was without counsel within the meaning of C.P.L. § 30.30(4)(f) on August 12, 2019, so the adjournment on that date is excludable. Therefore, the Court finds that 88 days of includable time have elapsed.
For the foregoing reasons, the defendant's motion seeking an order of dismissal are denied.
The foregoing constitutes the Decision and Order of the court.
Dated: October 24, 2019
Brooklyn, NY
_________________________________
Hon. Michael D. Kitsis, J.C.C. Footnotes
Footnote 1:While the People's response was initially due on October 10, 2019, on that day, ADA Perez called the Court to explain that due to unforeseen circumstances, he needed an additional day to complete his response. The Court granted that request, and ADA Perez served and filed his response on October 11, 2019. The one day of extra time in no way delayed the Court's consideration and decision of the motion and so did not affect the defendant's speedy trial rights.
Footnote 2:The transcript from the proceeding indicates the following colloquy took place: "Have you been in touch with your attorney?" The Defendant: "No. The last time I came to court." Tr. Aug. 12, 2019 p. 2:8-11.
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