People v Lumpkin

[*1] People v Lumpkin 2021 NY Slip Op 50365(U) Decided on April 27, 2021 Supreme Court, Kings County Hecht, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2021
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Jahmeek Lumpkin, Defendant.



4225/2019



ADA Amanda Hersh, Kings County District Attorney's Office

Kasia Donohue, Esq., Legal Aid Society
John T. Hecht, J.

This decision addresses how the speedy-trial statute applies in a case that straddles the effective date of the new criminal justice legislation embodied in Criminal Procedure Law ("CPL") Article 245 (L 2019, ch 59 § 2 [Part LLL], eff January 1, 2020). In particular, it considers the intersection of a new requirement, that discovery be accompanied by a certificate of compliance ("COC") before the People may toll the speedy-trial clock by stating their readiness for trial, with the traditional exclusion of motion practice from that measure.

Defendant Jahmeek Lumpkin is charged with robbery in the second degree and other related charges based on an incident that allegedly occurred on June 26, 2019. He seeks speedy-trial dismissal of this indictment, arguing that, even discounting excludable time (CPL § 30.30 [4]), the People have not been ready for trial within six months of the commencement of this action (CPL § 30.30 [1]); specifically, that 232 days of includable time have elapsed since he was arraigned in Criminal Court on July 12, 2019.

The court has reviewed defendant's motion, the People's opposition and defendant's reply.

Defendant was arrested on July 11, 2019. On July 12, 2019, he was arraigned on a felony complaint. The case was subsequently presented to a grand jury and indicted. On September 26, 2019, the People filed the indictment and a written statement of their readiness for trial.[FN1]

Defendant was arraigned on the indictment on October 15, 2019. He moved for inspection of the grand jury minutes and discovery (see p. 5 infra). The case was adjourned to December 3, 2019, for a decision on the sufficiency of the grand jury minutes and discovery, and [*2]then again to January 15, 2020, for that decision.

On January 1, 2020, CPL Article 245 came into effect, replacing the prior discovery law embodied in Article 240. Among its new provisions was a requirement that, before the court may accept the People's statement that they are ready for trial, they must file a COC stating that they have exercised due diligence and made inquiries to obtain discoverable material and that they have given all known discoverable material to defense counsel (CPL § 245.50 [1], [3]).

On January 15, 2020, the court issued a written decision, dated January 6, 2020, finding, upon inspection, the grand jury minutes to be sufficient. The court ordered a Dunaway/Wade hearing on consent, and the case was adjourned to February 13, 2020, for continued discovery and to set a hearing and trial date.

On February 13, 2020, the case was adjourned to April 16, 2020, for the previously ordered hearing and trial. The court stated that the People would be charged with speedy-trial time until they filed a COC (Sciarrino, Jr., J.). On March 20, 2020, however, the Governor of the State of New York issued an executive order suspending the speedy-trial statute because of the Covid-19 pandemic. The suspension was ultimately continued through October 19, 2020 (see Executive Order [A. Cuomo] Nos. 202.8, 202.67).[FN2]

On October 28, 2020, the People served and filed a COC and statement of readiness.

On October 29, 2020, the case was adjourned to December 3, 2020, for defense counsel's COC and a conference. Before then, however, on November 25, 2020, defense counsel filed a motion challenging the People's COC.

On December 3, 2020, defendant did not appear on the calendar call of this case, because he had been arrested the day before on a new matter. The present case was adjourned to January 12, 2021, for defendant to appear and for the completion of discovery. In the interim, on December 15, 2020, the People filed a supplemental COC.

On January 12, 2021, the matter was adjourned to February 23, 2021, for the court's decision on defendant's motion challenging the COC. The court rendered a decision on February 23, 2021, ruling that the People's original COC was invalid because the People had failed to turn over grand jury minutes to the defense, but their second COC dated December 15, 2020, was in fact valid (Sciarrino, Jr., J.). The case was adjourned to April 5, 2021, for the defense COC and a conference. But on February 24, 2021, defendant filed the motion presently under consideration.

CPL § 30.30 requires dismissal of a felony indictment when the People are not ready for trial within six months of the commencement of the criminal action (CPL § 30.30 [1] [a]), which occurs when the felony complaint is filed (see People v Cortes, 80 NY2d 201 [1992]; People v Smith, 97 AD2d 485 [2d Dept 1983]).

The Court of Appeals has explained the procedure for deciding a speedy-trial motion:

Whether the People have satisfied this [speedy-trial] obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion.

[*3]Cortes, 80 NY2d at 208.

Thus, when a defendant alleges a violation of his statutory speedy-trial right,

the People [must] identify the statutory exclusions on which they intend to rely, [and] the defendant any legal or factual impediments to the use of those exclusions.

People v Beasley, 16 NY3d 289, 292 [2011], quoting People v Goode, 87 NY2d 1045, 1047 [1996].

The People acknowledge only 147 chargeable days: the 76 days between defendant's arraignment on the felony complaint on July 12, 2019, and the People's statement of readiness for trial on the filed indictment on September 26, 2019; the 35 days between February 13, 2020, when the court said that it would charge the People until they filed a COC, and March 20, 2020, when the Governor suspended CPL § 30.30; the nine days between October 20 and October 29, 2020, and the 27 days between October 29 and November 25, 2020, from the revival of CPL § 30.30 until the defense filed its motion challenging the COC, without any tolling for the COC that was subsequently ruled invalid. As to the remaining adjournments, the People contend they are excludable.

The court will explain why the People are correct that certain adjournments are excluded from the speedy-trial calculation.

The period from September 26, 2019, when the People announced their readiness to try the filed indictment, until defendant's arraignment on October 15, 2019, is not chargeable to the People because production of a defendant for arraignment is the court's responsibility (see People v Carter, 91 NY2d 795 [1998]; People v Goss, 87 NY2d 792 [1996]). Defendant's reliance on People v. England, 84 NY2d 1 (1994), is misplaced because here, unlike in England, the People's September 26 statement of readiness did in fact allow defendant to be arraigned well within the statutory period of limitations.

The adjournments from October 15, 2019, until January 15, 2020, when the court issued a decision after inspecting the grand jury minutes, were all excludable, either for motion practice or with defendant's consent or at his request (see CPL § 30.30 [4] [a], [b]). Indeed, defense counsel concedes that, when the court asked her on the day of defendant's arraignment, whether she "wanted" inspection of the minutes, she "assent[ed]" (see Reply to Peo's Opp ¶ 30).[FN3] Counsel's contention that judicial review of the minutes is a prerequisite for trial (and that the delay thereby occasioned renders that time includable) is simply incorrect. No such requirement exists.[FN4] Particularly now, with early and automatic disclosure of grand jury minutes, a defense [*4]lawyer may choose not to seek such inspection. In any event, a court has no obligation to inspect the minutes without a defense request to do so. In this case, therefore, the adjournments for the court to obtain and review the minutes, as requested by the defense, are excluded from the speedy-trial calculation.

Defendant argues that, because the People did not file a COC on January 1, 2020, when CPL Article 245 came into effect, the speedy-trial clock began to run again. Although the Legislature amended CPL § 30.30 (5) to require the People to file a COC pursuant to CPL § 245.50 before they can be deemed ready for trial, it did not amend CPL § 30.30 (4) (a), which still provides that delay resulting from pre-trial proceedings concerning the defendant, including pre-trial motions, must be excluded (see People v Erby, 68 Misc 3d 625, 637 [Sup Ct Bronx Co 2020]; People v Kura, Ind No 5290/2019 [Sup Ct Kings Co September 23, 2020] [Chun, J.]; see also People v Rodriguez, 59 Misc 3d 1212[A] *5 [Sup Ct Kings Co 2018] [Hecht, J.] [applying CPL § 30.30 (4) (a) exclusion to pre-indictment motion to compel buccal swab]). Accordingly, the time during which the court considered the sufficiency of the grand jury minutes, that is, the period from October 15, 2019, through January 15, 2020, is excluded, despite the intervening efflorescence of Article 245.

Similarly, the period from January 15 to February 13, 2020, when the case was adjourned for discovery and to set a hearing and trial date, is not chargeable to the People, also pursuant to the motion exclusion, as defendant's motion to suppress was then "under consideration by the court" (CPL § 30.30 [4] [a]): The hearing on the motion needed to be held and a decision rendered on the suppression issue that defendant had raised (see People v Shannon, 143 AD2d 572, 572-73 [1st Dept 1988], lv denied 73 NY2d 860 [1988]; People v Jaquez, —- Misc 3d —-, 2021 NY slip op 21097 *1 [Sup Ct NY Co 2021]). The CPL makes this clear. A motion to suppress "is the exclusive method of challenging the admissibility of evidence" allegedly obtained "unlawful[ly] or improper[ly]" (CPL §§ 710.70 [3], 710.20). Thus it is a motion by and for the benefit of a defendant (CPL § 30.30 [4] [a]); in fact, "a defendant who does not make such a motion before or in the course of the criminal action waives his right to a judicial determination of any such contention" (CPL § 710.70 [3]). Once the motion is made, unless the court summarily grants or denies it, the court "must conduct a hearing" (CPL § 710.60 [4]) and "the trial may not be commenced until determination of the motion" (CPL § 710.40 [3]). Consequently, the period when defendant's motion to suppress was under consideration, necessarily including adjournments to schedule the hearing on the motion, is excluded from the People's obligation to bring this case to a speedy trial.[FN5]

For the same reason, the delay from November 25, 2020, until February 24, 2021, was attributable to excludable adjournments, specifically, motion practice or defendant's consent or request.

On November 25, 2020, defendant filed a motion challenging the People's COC (CPL § 245.50 [4]), thus again triggering the motion exclusion of CPL § 30.30 (4) (a). Although defendant argues that he should not be charged with a motion necessitated by the People's conduct (here, the filing of a COC that, upon challenge, was ruled to be invalid), that argument ignores the simple reality of the CPL: Motions are the means by which disputes and alleged legal errors are brought to the attention of the court for a judicial determination, and the time that is required to decide these motions — which necessarily includes time for the adversary to respond and the court to consider the submissions - is excluded from the speedy-trial clock (see People v Kendzia, 64 NY2d 331, 338 [1985] [excluding time to decide successful speedy-trial motion]; Shannon, 143 AD2d at 573 ["Delay for the purpose of considering a motion to dismiss is not a People's delay; and, even if it were, it would still be excludable since it "directly 'results from' action taken by the defendant within the meaning of [CPL 30.30] subdivision 4 (a)"] [quoting People v Anderson, 66 NY2d 529, 536 [1985]]).[FN6] Defendant's motion challenging the People's COC remained undecided until February 23, 2021. The day after a decision on the motion was rendered and the case had been adjourned for the defense to file its COC and for conference (also excludable pursuant to CPL § 30.30 [4] [a], [b]), defendant again triggered the motion exclusion by filing the present motion.

Accordingly, because less than six months has elapsed since the commencement of this action, defendant's motion to dismiss pursuant to CPL § 30.30 is denied.

The foregoing constitutes the decision and order of the court.

Dated: April 27, 2021

Brooklyn, New York

_______________________

JOHN T. HECHT, J.S.C. Footnotes

Footnote 1:Defendant's claim that the People filed the indictment and statement of readiness on September 27, 2019, is rebutted by the court file.

Footnote 2:Defendant incorrectly claims that CPL § 30.30's limitations resumed October 19, rather than October 20, 2020.

Footnote 3:By specifically referencing CPL § 210.30 (People v Lumpkin, Ind No 4225/2019 [Sup Ct Kings Co January 6, 2020] [Sciarrino, Jr., J.]), the court, in its decision denying the motion to inspect and dismiss, in fact confirms that defendant had made a motion pursuant to that statute, which expressly denominates it a "motion of the defendant" (CPL § 210.20 [1]).

Footnote 4:People v. McKenna, 76 NY2d 59, 64-66 (1990), recognized that where the defendant had "exercis[ed]" his "statutory right to test the sufficiency of the evidence before the Grand Jury" "the trial simply could not go forward" without inspection of the grand jury minutes. That of course is not the same as stating that a court must inspect the minutes without a dismissal motion pursuant to CPL § 210.30 — whether written, as there, or oral, as here.

Footnote 5:The People incorrectly concede 35 days between February 14 and March 20, 2020. Their concession may be disregarded (see People v Porch, 212 AD2d 360, 361 [1st Dept 1995], lv denied, 85 NY2d 978 [1995]; People v Ali, 209 AD2d 227, 227 [1st Dept 1994], lv denied, 85 NY2d 905 [1995]), particularly as it appears to be based on the court's statement, on February 13, 2020, that the People would be charged until they filed a COC, despite the fact that the matter was being adjourned for an excludable pre-trial suppression hearing. Moreover, People v. Berkowitz, 50 NY2d 333, 349 [1980], recognizes that a speedy-trial "determination is to be made when the defendant moves to dismiss on speedy trial grounds, and not at the time the adjournment is granted. This is so because there is no necessary connection between the validity of a particular ground for an adjournment and the question whether such a period is to be excluded in computing the six-month period pursuant to CPL 30.30."

Footnote 6:Although not addressed by defense counsel, the adjournment from December 3, 2020, until January 12, 2021, also cannot be attributed to the People because it was for the benefit of defendant and with his consent, and it resulted from his action: He failed to appear at a calendar call because he had been re-arrested, necessitating an adjournment for him to appear (see People v Buntin, 118 AD2d 863, 864 [2d Dept 1986], lv denied 68 NY2d 666 [1986]; CPL § 30.30 [4] [a], [b], [c]).