People v Mashiyach

[*1] People v Mashiyach 2020 NY Slip Op 20288 Decided on October 27, 2020 Criminal Court Of The City Of New York, Kings County Warin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 27, 2020
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Daniella Mashiyach, Defendant.



CR-027949-19KN



The Legal Aid Society, Steven Kuza for the defendant Kings County District Attorney's Office, Felix Dejesus for the People
Elizabeth N. Warin, J.

Defendant is charged with Assault in the Third Degree (PL 120.00 (1)), Attempted Assault in the Third Degree (PL 110/120.00 (1)), Menacing in the Third Degree (PL 120.15), Criminal Mischief in the Fourth Degree (PL 145.00 (1)), Criminal Possession of a Weapon in the Fourth Degree (PL 265.01 (2)) and Harassment in the Second Degree (PL 240.26 (1)). By motion filed on March 6, 2019, defendant moves to dismiss the accusatory instrument for facial insufficiency and for exceeding the speedy trial requirements of CPL 30.30.

Shortly after the motion was filed, on March 17, 2020, non-essential operations in New York City courts were suspended due to the COVID-19 pandemic. The governor also suspended the operation of the speedy trial provisions of CPL 30.30 during this period until it was reinstated for misdemeanor crimes on October 5, 2020. As a result of these emergency measures, the People did not file their response to the motion until September 24, 2020. Defense filed a reply on October 6, 2020.

For the following reasons, defendant's motion to dismiss the remaining charges pursuant to CPL 30.30 is GRANTED.

MOTION TO DISMISS PURSUANT TO CPL§ 30.30

Applicable Standards

Where, as here, the top count charged on the information is an A misdemeanor, the People are required to be ready for trial within ninety days, less any excludable time (CPL 30.30[1][b]). The ninety-day period commences with the filing of the accusatory instrument (see [*2]CPL 1.20 [17]); People v Stirrup, 91 NY2d 434, 438 [1998]). Before answering ready for trial, the People must 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, 4 [1994]).

Once a statement of readiness is filed, the People are only charged for adjournments when the delay is solely and exclusively the fault of the prosecution, and the time cannot otherwise be excluded under Section 30.30 (4) (see People v. Brown, 28 NY3d 392, 404 [2016]; People v Cortes, 80 NY2d 201, 210 [1992]). The People are thus generally charged post-readiness with the amount of time they request on the record (see People v Bruno, 300 AD2d 93, 95 [1st Dept 2002]).

On January 1, 2020, new discovery and speedy trial laws went into effect, replacing CPL 240 and amending sections of CPL 30.30. Article 245 now delineates the People's expanded discovery obligation and sets out a statutory time frame for its completion (CPL 245.20; 245.10).[FN1] Under these provisions, the People must comply with their discovery obligations without any demand from the defense, unless the defense explicitly waives the receipt of discovery (see CPL 245.75).

As discussed in previous decisions by this Court, (see e.g. People v. Lobato, 66 Misc 3d 1230 [A], 2020 NY Slip Op 50322 [U] [Crim Ct, Kings County 2020]; People v. Berkowitz, 68 Misc 3d 1222[A], 2020 NY Slip Op. 51044 [U] [Crim Ct, Kings County 2020]), the newly enacted provisions of CPL 245.50 require that the People comply with the discovery obligations enumerated in Section 245.20 as a precondition to a valid statement of readiness (see Lobato, 2020 NY Slip Op 50322 [U] *4)("the provisions of CPL 245.50 and 30.30 interlace discovery compliance and trial readiness, such that discovery compliance is a condition precedent to a valid announcement of readiness for trial, absent 'exceptional circumstances' on a particular case").[FN2] Further, the prior presumption of validity for a statement of readiness has been replaced by a statutory mandate that the Court inquire into the validity of the People's claim that they are ready to proceed to trial (id). In brief, "[w]hat constitutes "trial ready" as of January 1, 2020 is not the same as when the People announced ready in [ ] 2019." ( id at *4 )

While the defense raises several issues in the instant motion,[FN3] the dispositive issue here is the effect of these new readiness standards on the speedy trial calculations for an existing criminal case in "post-readiness" posture under the 2019 standards. The relevant chronology of the case is

set forth below.

Time Charged to the People

July 26-September 4, 2019

On July 26, 2019, the defendant was arraigned, and the case was adjourned for conversion to September 4, 2019. On August 30, 2019, the People filed a superseding information, a supporting deposition, a certificate of translation from English to Hebrew, and a statement of readiness. Over the defense objection, the Court deemed the complaint an information and advised the defendant to file any opposition to the court's ruling in a written motion. The case was adjourned to October 17, 2019, for discovery by stipulation ("DBS").[FN4]

As the People concede, the People are charged from arraignment until their statement of readiness on August 30, 2019.

35 DAYS CHARGED,TOTAL = 35

September 4, 2019-October 17, 2019 and October 17, 2019-November 8, 2019

On the next date of October 17, the People did not file DBS and announced that they would serve discovery off calendar. The defendant did not appear at the October 17th court date because she was sick and the Court stayed a bench warrant. The People were ordered to serve discovery by October 25th and the case was adjourned for hearing and trial to November 8, 2019.

According to the voluntary disclosure agreement in Kings County and existing precedent, adjournments for discovery by stipulation are excludable (see People v Thomas, 26 Misc 3d 144 [A] [App Term, 2d Dept 2010]; People v Dorilas, 19 Misc 3d 75, 76 [App Term, 2d Dept 2008]; People v Nazarov, 2017 NY Slip Op 50337 [U], at *3 [Crim Ct, Kings County 2017]). Further, it is well settled that a reasonable adjournment to prepare for hearings and trial is not chargeable to the People (see People v Greene, 223 AD2d 474 [1st Dept 1996], lv. denied 88 NY2d 879 [1996]). Accordingly, the time from the adjournment for discovery by stipulation on October 17th to the first adjournment for trial on November 8, 2019, is excluded.

0 DAYS CHARGED,TOTAL = 35.

November 8, 2019-December 9, 2019

On November 8, 2019, the People were not ready due to the complainant's unavailability and requested 14 days. The case was adjourned to December 9th for trial.

As the People were in post-readiness posture, the People are charged only for the time they requested (see Bruno, 300 AD2d at 95).

14 DAYS CHARGED,TOTAL= 49.

December 9, 2019-January 21, 2020 - February 11, 2020

On December 9, 2019 the People answered not ready because the arresting officer was unavailable and requested 11 days. Defense counsel requested a date in late January, suggesting January 21st and the case was adjourned to January 21, 2020 (Tr of 12/9/19 at 2-3). On January 21, 2020, the People stated they had not completed their discovery obligations, nor filed a certificate of compliance, and therefore answered not ready. The case was adjourned to February 11, 2020 for discovery and a certificate of compliance.

Both sides agree that under the laws in effect in 2019, the People are charged for the eleven days they requested in December, bringing the minimum time chargeable to the People to sixty days before the effective date of the new laws. Their opinions diverge, however, on whether or not the People should be charged for the time period from January 1, 2020 on.

The People claim first that the statement of readiness filed in 2019 continues to toll speedy trial time past the effective date of the new law on January 1, 2020, arguing that the new laws do not invalidate the prior statement of readiness, nor alter the pre-existing case law charging the People only for their requested adjournments in a post-readiness posture (see People's Response at 10-11, citing People v. Percell, 67 Misc 3d 190, 2020 NY Slip Op 20031 [Crim Ct, Kings County 2020]). This Court disagrees. Such an interpretation ignores the fundamental change to the meaning of "trial readiness" under the 2020 standards that now require discovery compliance prior to a valid statement of readiness (Lobato, 2020 NY Slip Op 50322 [U]). The new laws do not invalidate the 2019 statement of readiness, but they do re-define what constitutes a statement of readiness going forward (id.; Accord People v. Villamar, __ NYS 3d __ [2020]; 2020 NY Slip Op 20236, *3 ("[t]here was nothing flawed or invalid about the certificate of readiness when it was filed in 2019. What has happened is that the Legislature has reset the People's readiness status by tying it to the fulfillment of their obligations under the discovery laws").

The People argue in the alternative that a thirty-five day time period from January 1, 2020 until February 4, 2020 is excludable from speedy trial calculations under CPL 30.30 (4) (a), as "a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to . a demand to produce" (CPL 30.30 [4] [a] citing People v. Roland, 67 Misc 3d at 337, 2020 NY Slip Op 20058 [Crim Ct, Kings County 2020]; see People's Response at 12-14)).[FN5] The Court again disagrees.

CPL 30.30 (4) (a) allows for the exclusion of:

a reasonable period of delay resulting from other periods concerning the defendant, including but not limited to: proceedings for the determination of competency, and the period during which the defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court (CPL 30.30 [4] [a]).

The new statutory framework abolishes the prior mechanism for obtaining discovery through serving a demand upon the People and instead requires that the People provide the discovery listed in CPL 245.20 "automatically" within the deadlines established in CPL 245.10 (Lobato, 2020 NY Slip Op 50322 [U]); accord Villamar, 2020 NY Slip Op 20236, *4; People v. Akramov, 67 Misc 3d 558, 540, 2020 NY Slip Op 20069 [Crim Ct, Kings County 2020] (noting the absence of "any grace period" for discovery compliance in the statute); Cf. Roland, 67 Misc [*3]3d at 337). As discovery demands are now defunct, the exclusion provided for in Section (4) (a) is no longer applicable to the period of time when the defendant is waiting for discovery to be provided by the prosecution.

The People also argue that the absence of additional revisions to CPL 30.30 suggest a legislative intent to extend the existing speedy trial precedent which excludes the time for compliance with a discovery demand as a delay not "caused by the People" (see People's Response at 10-11). The Court is not persuaded. To exclude a 35 day period of time after January 1, 2020 for discovery compliance would contravene the framework of the new laws that tie discovery compliance to trial readiness - the prosecutorial status that controls the stopping of the speedy trial clock under CPL 30.30. CPL 245.10 and its related provisions mandate early and fulsome disclosure by the People by establishing bright-line deadlines that are uniformly applicable yet provide for special circumstances, exceptions to disclosure and extensions of time where the People can identify and justify the same (see e.g. CPL 245.10; 245.50 [3]). The ticking of the speedy trial clock while the People discharge their discovery obligations reinforces the mandated deadlines of CPL 245.10 (1), just as the potential for sanctions under CPL 245.80 (1) imposes consequences for omissions or delay where prejudice is shown to the defense.

The People assert the statutory provision in CPL 245.75 allowing for the defendant to waive automatic discovery indicates that the absence of a waiver is comparable to a demand to produce under CPL 30.30 (4) (a) (see People's Response at 13). The People point to no authority to suggest that the absence of a waiver should be construed as a demand, nor does the Court believe any such authority exists.

Finally, the People claim that automatic discovery should be excluded as analogous to the existing voluntary disclosure practice in Kings County (see People's Response at 13, citing Dorilas, 19 Misc 3d 75). The practice of DBS was the result of an agreement by the defense bar and the Kings County prosecutor's office, allowing for the waiver of pre-trial motion practice in exchange for voluntary discovery, as long as the discovery adjournment would be excluded from speedy trial calculations as if the defense had made a formal demand. Dorilas and its progeny relied on the proposition that DBS stands in lieu of a formal demand to produce and is thus, excludable under CPL 30.30 (4) (a) (see Dorilas at 77 (holding adjournments for DBS were "the functional equivalent of pre-trial discovery and motion practice" and were excluded from speedy trial calculations pursuant to CPL 30.30 (4) (a); People v. Khachiyan, 194 Misc 2d 161 [Crim Ct, Kings County 2002]). By contrast, Article 245 now imposes an affirmative duty upon the People to provide discovery, a statutory requirement that is not comparable to the DBS contractual agreement.

The Court therefore finds the People were not "trial ready" on January 1, 2020, because they had not complied with the discovery requirements by the effective date of the new laws, nor have they identified any special circumstances to excuse their noncompliance with the same. Accordingly, the People are charged with 11 days from December 9, 2020 to December 20, 2020 and 42 days from January 1, 2020 to February 11, 2020.

[*4]53 DAYS CHARGED,TOTAL = 102 DAYS

The parties raise additional arguments concerning later adjournments, including the validity of the People's first certificate of compliance.[FN6] The Court declines to decide these issues as the Court has concluded that the People have exceeded the 90 days allotted to prosecute this case under CPL 30.30 The People are charged with a total of 102 days and the defendant's motion to dismiss pursuant to CPL 30.30 is GRANTED.

Further, the Court declines to rule on the defendant's motion to dismiss for facial insufficiency pursuant to CPL 170.30, 170.35, as that motion is moot.

The foregoing constitutes the opinion, decision and order of the Court.

Dated: October 27, 2020

Brooklyn, New York

E N T E R:

_____________________________

Elizabeth N. Warin, J.C.C. Footnotes

Footnote 1:CPL 245.20 (1), entitled "initial discovery" states that the "prosecution shall disclose to the defendant ... all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control."

Footnote 2:The prior standard of "exceptional circumstances" was amended by the legislature on April 3, 2020, to an "individualized finding of special circumstances." (see CPL 254.50[3], as amended by 2020 Sess. Law of NY Ch. 56 (S. 7506-B)).

Footnote 3:These issues include the facial sufficiency of the information, the validity of the certificate of translation, and the alleged illusoriness of the statement of readiness filed in 2019.

Footnote 4:"Discovery by stipulation" is an agreement between the Kings County District Attorney's Office and the defense bar allowing for the provision of discovery without need for a demand or motion by the defense, as long as the speedy trial clock was tolled for that adjournment

Footnote 5:The Court presumes that 35 days has been selected as a "reasonable period" because the legislature amended the statutory deadlines of CPL 245.10 to require discovery be provided within 35 days of the defendant's arraignment (see 2020 Sess. Laws of NY CH. 56 (S. 7506-B)). The People do not explain why a certificate of compliance was not filed at the conclusion of that time (compare Roland, 67 Misc 3d 330 (excluding fifteen days where prosecution filed certificate of compliance on first adjournment date in January, 2020; People v. Carlos Vasquez-Perez, Crim Ct, Kings County, July 17, 2020, Gingold J., Docket No. CR-030127-19KN (same)).

Footnote 6:The defense argues the certificate of compliance filed on February 19, 2020 is invalid as body-worn camera footage and memo books from three officers, as well as possible surveillance video of the incident were not included (see People's Exhibit K, Certificate of Compliance dated Feb. 19, 2020; People's Brief at 16).