People v Lewis
Annotate this CaseDecided on September 13, 2022
Supreme Court, Kings County
The People of the State of New York,
against
Dashawn Lewis, Defendant.
Ind. No. 70695/21
Appearing on behalf of the defendant: Wadeedah Sheeheed, Esq., 32 Court Street, Suite 707, Brooklyn NY 11201
Appearing for the People: Assistant District Attorney Christopher C. Rainwater, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201
Jill Konviser, J.
On May 26, 2022, the defendant filed a motion to dismiss the indictment pursuant to Criminal Procedure Law (C.P.L.) Section 30.30.[FN1] The People opposed in a reply dated June 23, 2022. The People subsequently filed an amended reply dated August 24, 2022. Based upon a review of the Supreme Court file, relevant transcripts, and the papers filed by the parties, the motion to dismiss is denied.
This action commenced on June 8, 2020 with the filing of a felony complaint charging Assault in the Second Degree, and related offenses. Where a defendant is charged with at least one felony offense, the People are required to be ready for trial within six months (C.P.L. § 30.30[1][a]). As the six-month period in which the People are required to be ready is measured by the number of days in the intervening calendar months, the People are allotted 183 days to be ready for trial. (See People v. Cortes, 80 NY2d 201 [1992]). The Court, for the reasons discussed below, finds that the People have not exceeded the speedy trial time allotted in this case.
Calculation of Speedy Trial Time June 8, 2020 to April 20, 2021
The defendant was arraigned on the felony complaint on June 8, 2020. Approximately three months prior, on March 20, 2020, as a result of the COVID-19 pandemic, then Governor Andrew Cuomo issued Executive Order 202.8 tolling the provisions of C.P.L. § 30.30. The tolling of C.P.L. § 30.30 was extended by successive Executive Orders through Executive Order [*2]202.87, issued on December 30, 2020, which extended the tolling provisions for unindicted felonies until either the defendant was arraigned on an indictment or through May 23, 2021, whichever came first. In this case, the defendant was indicted on March 24, 2021, the People served and filed a Certificate of Compliance (COC) and Statement of Readiness on April 7, 2021 and the defendant was subsequently arraigned on the indictment in Supreme Court on April 20, 2021. Notwithstanding, the defendant argues that as grand juries were empaneled during the pandemic the People should be charged with the entire time period from June 8, 2020 until April 7, 2021 when the People filed their Statement of Readiness, a period of 304 days. Although the People did endeavor to present a handful of matters to the Grand Jury during the pandemic, the unfortunate reality is that sick jurors, absent and/or immunocompromised court staff, ailing law enforcers, nervous witnesses, along with a crush of new cases in the midst of a relentless and raging global health crisis, all but precluded their efforts to present cases timely. That, coupled with the explicit language of the Executive Orders, makes plain that the entire time period from June 8, 2020 through the Supreme Court arraignment on the indictment on April 20, 2021, is excluded (see People v. Aquino, 2022 NY Slip Op 22079 [NY Sup Ct. 2022]; Brash v. Richards, 195 AD3d 582 [2nd Dept. 2021]; See also C.P.L. § 30.30 [4][g]).
This time period is excluded.
0 days: (6/8/20-4/20/21)
April 20, 2021 to May 24, 2021
On April 20, 2021 the defendant was arraigned on the indictment in Part TAP-2. Although C.P.L.§ 30.30 was no longer tolled, as the People had already filed their COC and Statement of Readiness on April 7, 2021, speedy trial was of no moment. The Court's review of the file and transcript confirms that the case was adjourned on consent from April 20, 2021 to May 24, 2021 for counsel's review of discovery for a potential COC challenge and for possible disposition. "Excludable periods include, inter alia, (sic) reasonable periods of delay resulting from other proceedings concerning the defendant, such as pretrial motions, or continuances obtained on consent or at the request of the defendant" (People v. Bowman, 197 AD3d 714, 714-715 [2d Dept. 2021]) quoting People v. Murray, 154 AD3d 881, 882, [2d Dept. 2017]; see C.P.L. § 30.30 [4] [a], [b]). Defendant does not contest this time period.
Accordingly, this time period is excluded. 0 days (4/20/21-5/24/21)
May 24, 2021 to June 24, 2021
On May 24, 2021 the case was adjourned on consent to June 24, 2021 for possible disposition to Part 35 (Hon. Dena Douglas). C.P.L. § 30.30 (4) (b). Defendant does not contest this time period.
This time period is excluded. 0 days (5/24/21-6/24/21)
June 24, 2021 to July 7, 2021
On June 24, 2021 the case was scheduled to be heard in Part 35 for the first time. No transcript exists for this date as the case was never called. The calendar entries for June 24, 2021, however, indicate that the matter was adjourned without appearances as Judge Douglas was unavailable. Defendant does not contest this time period.
This time period is excluded. 0 days (6/24/21-7/7/21)
July 7, 2021 to October 5, 2021
Both sides agree, and the file and transcript corroborate, that on July 7, 2021 Part 35 adjourned the case to October 5, 2022 for hearing and trial.[FN2] See C.P.L. § 30.30 (4) (a), (b). Defendant does not contest this time period.
This time period is excluded. 0 days (7/7/21-10/5/21)
October 5, 2021 to December 6, 2021
On October 5, 2021 Brooklyn Defender Services was relieved and current counsel was assigned to the matter. The case was initially adjourned to October 27, 2021 to join Indictment 72657-21 in Part 25 for possible disposition. On October 26, 2021 however, Part 25 contacted counsel regarding the need to reschedule the October 27, 2021 appearance due to an issue scheduling a virtual booth with the New York City Department of Corrections for the defendant's appearance. Counsel then consented to an administrative adjournment to December 6, 2021, for both cases, in order to discuss the voluminous discovery with the defendant. See C.P.L. § 30.30 (4) (a), (b). Defendant does not contest this time period.
This time period is excluded. 0 days (10/5/21-12/6/21)
December 6, 2021 to January 4, 2022
On December 6, 2021 the case was adjourned to January 4, 2022 for the defense COC. This time period, occasioned by the defendant's statutory obligation to file a certificate of compliance, is excluded. See, C.P.L. § 245.10 [2]). Defendant does not contest this time period.
This time period is excluded. 0 days (12/6/21-1/4/22)
January 4, 2022 to March 7, 2022
On January 4, 2022 the defense filed their COC and the case was adjourned to March 7, 2022, at the defendant's request, in order to obtain an expert witness to translate the body camera statements of the complaining witness. See C.P.L. § 30.30 (4) (a), (b). The defendant does not contest this time period.
This time period is excluded. 0 days (1/4/22-3/7/22)
March 7, 2022 to April 7, 2022
On March 7, 2022 the case was adjourned to April 7, 2022 for the defense expert to complete the translation of the body camera statements. See C.P.L. § 30.30 (4) (a), (b). The defendant does not contest this time period.
This time period is excluded. 0 days (3/7/22-4/7/22)
April 7, 2022 to May 4, 2022
On April 7, 2022 the case was adjourned to May 4, 2022 for hearings and trial. See C.P.L. § 30.30 4 (a), (b). The defendant does not contest this time period.
This time period is excluded. 0 days (4/7/22-5/4/22)
[*3]May 4, 2022 to May 12, 2022
On May 4, the People were not ready for hearings and trial and requested May 12. The parties agree that the People are charged from May 4, 2022 until May 12, 2022.
8 days (5/4/22-5/12/22)
May 12, 2022 to July 7, 2022
On May 12, 2022 the People announced ready, but the defense requested a motion schedule to file the instant motion. The period of time during which a case is adjourned for the consideration of pre-trial motions and the Court's decision, is excluded. C.P.L. § 30.30 (4) (a); see People v. Kanter, 173 AD2d 560 (2d Dept. 1991); People v. Brown, 136 AD2d 715 (2d Dept. 1988). The defendant does not contest this time period.
This time period is excluded. 0 days (5/12/22-7/7/22)
July 7, 2022 to September 13, 2022
Defendant filed the instant motion to dismiss on May 26, 2022. The People filed their initial reply on June 23, 2022. As neither party provided the Court with any transcripts, on July 7, 2022 the Court adjourned the matter to September 13, 2022 in order to obtain transcripts and for the Court's decision. In the interim, on August 24, 2022, the People filed the aforementioned amended reply. The period of time during which a case is adjourned for the consideration of pre-trial motions and the Court's decision concerning the defendant is excluded. C.P.L. § 30.30(4)(a); see People v. Kanter, supra; People v. Brown, supra.
This time period is excluded. 0 days (7/7/22-9/13/22)
Conclusion
The People are charged with 8 days. Accordingly, the defendant's motion to dismiss the indictment is denied without a hearing. This constitutes the Decision and Order of the Court.
Dated: Brooklyn, New York
September 13, 2022 Footnotes
Footnote 1:Although the defense makes reference to C.P.L. § 30.20, no arguments related to a Constitutional Speedy Trial violation were raised in the defendant's motion.
Footnote 2:In the interim, on August 11, 2021, the defendant was re-arrested and charged with Rape in the First Degree and related charges that subsequently resulted in Indictment 72657-21. The defendant was arraigned on that new indictment in Part 25 on September 17, 2021.
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