People v Miller
Annotate this CaseDecided on May 23, 2023
Criminal Court of the City of New York, Bronx County
The People of the State of New York,
against
Jahfari Miller, Defendant.
Docket No. CR-021462-22BX
For the Defendant:
The Bronx Defenders (by: Imani Waweru, Esq.)
For the People:
Darcel Clark, District Attorney, Bronx County (by: ADA Douglas Chau)
Yadhira González-Taylor, J.
Defendant moves, inter alia, for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to Criminal Procedure Law ("CPL") §§ 30.30 (1) (b) and 170.30 (1) (e). Specifically, defendant asserts that the People served their certificate of compliance ("COC") after the expiration of their speedy trial time. The People oppose the motion.
Upon review and consideration of the submissions, court file and relevant legal authority, the court finds that the People's service of their COC on January 23, 2023, was effective and within the time prescribed by CPL § 30.30. Accordingly, the People's prosecution was not untimely, and defendant's motion is denied.
PROCEDURAL BACKGROUNDOn November 26, 2022, defendant Jahfari Miller was arrested and charged with three counts of Operating a Motor Vehicle Under the Influence of Alcohol or Drugs, in violation of Vehicle and Traffic Law ("VTL") § 1192 (1) (driving while impaired), § 1192 (2) (driving while intoxicated; per se) and § 1192 (3) (driving while intoxicated).
On November 27, 2022, defendant was arraigned and released on his own recognizance. On November 30, 2022, a "hardship hearing" was held to determine whether defendant would be issued a conditional driver's license pending prosecution; defendant was denied. On January 12, 2023, the parties appeared before Hon. Giyang An and the People stated that they had not filed their COC yet, and the matter was rescheduled to February 27, 2023. On January 23, 2023, the People filed their COC and SOR with the court via EDDS and sent an email to defense counsel at "edwards@bronxdefenders.org," which purportedly attached their COC, Statement of Readiness ("SOR") and a report concerning defendant's chemical test analysis ("CTA"); the prosecution also contemporaneously emailed the CTA to "bedwards@bronxdefenders.org" and to a general email box for The Bronx Defenders, "bxddiscovery@bronxdefenders.org."
At the February 27, 2023 court appearance, the People represented to Hon. Carmen Pacheco that they had filed an off-calendar COC and SOR. However, defense counsel stated that although she had the People's disclosure, she was not in receipt of their COC and SOR. The People confirmed [*2]that the documents had been emailed, and they served defense counsel with a copy of the COC, SOR and the CTA in court. Judge Pacheco noted that the COC had been filed via EDDS and she deemed it to be valid, subject to information that the January 23, 2023 email to defense counsel had bounced back, and the docket was adjourned.
Before the next appearance, the People emailed another copy of their COC and SOR to defense counsel on March 1, 2023. At the April 10, 2023 appearance, defense counsel reiterated that she never received the emailed COC and SOR on January 23, 2023. The prosecution advised that after investigating the matter, they discovered that the January 23, 2023 email was sent to an incorrect address. However, the People restated their belief that the email had been delivered because there was no bounce back. This court inquired whether defendant had any objection to the propriety of the COC based upon the People's disclosure. Defense counsel advised the court that she had no objection to the COC but would reserve the right to supplement the instant motion to dismiss, filed April 7, 2023, concerning any disputed disclosure issues. The COC was again deemed valid. Defense counsel's motion to dismiss is entirely premised on the claim that from January 23, 2023, when the COC and SOR were sent to an incorrect email, to March 1, 2023, when the documents were served to her correct email, is not excludable and, thus, the People are properly charged with 94 days.
The People oppose the motion and further aver that notwithstanding what they view as a typographical error in defense counsel's email, they evinced a good faith effort to serve their COC and SOR on January 23, 2023, as demonstrated by their contemporaneous filing of the same with the court through EDDS and by service of defendant's CTA to defense counsel's correct email. Parenthetically, the People assert that defense counsel was personally served with a copy of their COC and SOR on February 27, 2023, two days earlier than defendant acknowledges, and that pursuant to CPL § 30.30 (4) (a), the three days from defendant's arraignment until his hardship hearing, is properly excludable if the court construes the hardship hearing as an "other proceeding." Defendant filed a Reply reiterating his arguments but asserting no objections to the propriety of the People's COC.
DISCUSSION
I. The Parties' Arguments
Defendant asserts that the People failed to properly serve their COC, and that their belated compliance failed to stop their speedy trial time. Defense counsel further avers that although the People claimed to have sent their COC and SOR in an email to "edwards@bronxdefenders.org," they knew or should have known that her correct email is "bedwards@bronxdefenders.org." (affirmation of defendant's counsel at 8-9). Defendant contends that this is purely a matter of ineffective service and the People's good faith does not warrant a finding that the time from January 23, 2023 through March 1, 2023, is excludable based upon, apparently, office failure. (affirmation of defendant's counsel at 9). Defendant cites to several cases for the proposition that in the absence of a valid COC, pursuant to CPL §§ 245.50 (1) and 245.50 (3), which mandate that the People serve upon defendant a COC, without which they cannot declare their readiness for trial, the prosecution cannot stop their 30.30 speedy trial time from accruing. (affirmation of defendant's counsel at 10).
Additionally, defendant argues that the People have failed to provide any authority for their contention that time allotted to a determination of defendant's hardship hearing should be excludable. (affirmation of defendant's counsel at 8-9).
The People concede that their COC and SOR were not sent to defense counsel's correct email on January 23, 2023, but counter that their intention should be inferred from their contemporaneous filing with the court, and by their filing of defendant's CTA report to counsel's correct email on the same date. (affirmation in support of the People's opposition at ¶¶ II-III).
The People further argue that they had no reason to believe that their January 23, 2023 email was not received by The Bronx Defenders, even if not directly served on the assigned counsel, because there was no return email and, thus, defendant should be deemed to be in constructive possession of the COC and SOR. (affirmation in support of the People's opposition at ¶¶ II-III). For good measure, the People also attach a copy of the email they sent to defense counsel specifically identifying the COC and SOR, which they assert indicates the prosecution's intention to effectuate service.
The People further state that defense counsel was personally served with their COC and SOR at the February 27, 2023 court appearance, two days earlier than acknowledged, and that defendant's hardship hearing should be construed as an "other proceeding," such that three additional days would be excludable as chargeable time pursuant to CPL §30.30 (4) (a). (affirmation in support of the People's opposition at ¶ IV). Consequently, the People argue that if the court does not find the January 23, 2023 service effective, then defendant's calculation of 94 days should be reduced by five days and their 30.30 clock would have been stopped at 89 days, within their statutory mandate.
II. The Court's Analysis
Pursuant to CPL § 245.50 (1), where the prosecution has complied with their disclosure obligations, the People are required to serve a COC on defendant and file it with the court as a condition precedent to announcing their readiness for trial (CPL § 245.50 [1] [emphasis added]). However, the statute is silent as to what constitutes effective service.
Defendant cites to several cases for the proposition that service to an incorrect email should not be considered effective and cannot stop the prosecution's speedy trial time from continuing to run. (see People v Telemaque, 2014 NY Slip Op 50712(U) [2d Dept 2014]; People v Corley, 30 Misc 3d 1232 (A), 2011 NY Slip Op 50311 (U) [Crim Ct, NY County 2011]; People v Chittumuri, 189 Misc 2d 743, 736 NYS 2d 581 [Crim Ct, Queens County 2001]). However, the court finds that the facts presented here differ and these holdings are inapposite for the case at bar.
In Telemaque, an SOR had been served on prior counsel, despite the fact that incoming counsel had served a notice of appearance in court, in the presence of the prosecution, and advised that he had been newly retained (see, Telemaque, 2014 NY Slip Op 50712 (U), *4 ["(h)e presented the People with his business card listing his address and telephone number, and he filed a notice of appearance"] [internal citation omitted]). Here, unlike the prosecution in Telemaque, the People were not mistaken as to who was counsel of record and their actions demonstrated their intent to serve the assigned attorney with the COC and SOR.
In Corley, the prosecution mailed their certificate of readiness to a completely different address than what was listed on defense counsel's notice of appearance (see Corley, 2011 NY Slip Op 50311 (U) at *3 ["(a)ttorney [] maintains in a sworn affirmation that she has never worked for the Legal Aid Society, and that the defendant has never been represented by the Legal Aid Society"]). In the instant matter, the People concede that they emailed the COC and SOR to an incorrect address. However, the difference between "edwards@bronxdefenders.org" and "bedwards@bronxdefenders.org," the correct address, suggests a de minimis error particularly in [*3]the context of the contemporaneous filing with the court and service of discovery to defense counsel's correct email.
In Chittumuri, the court rejected the prosecution's contention that serving their statement of readiness on the wrong attorney was an error made in good faith (see Chittumuri at 747 ["The People knew or should have known about the substitution of attorneys. As stated above, and in the minutes provided to the court, the People were given actual notice of the substitution"] [emphasis added]). As a threshold matter, the disputed issue does not involve a change of attorneys. Moreover, this court credits the prosecution's statement that the emailed COC and SOR did not bounce back and, therefore, the People had no reason to suspect that it had not been delivered.
Similarly, defense counsel references the holding in People v Zhu, 171 Misc 2d 298, 300, 654 NYS 2d 272, 274 [Sup Ct, Kings County 1997] to draw an analogy between this case and the Zhu prosecution's failure to comply with their speedy trial mandate resulting from service of their statement of readiness on defendant's former counsel. However, the comparison is unavailing and this court declines to extrapolate from Zhu's holding where the prosecution in the instant matter acted deliberately to serve the assigned counsel, albeit to an incorrect email.
Defendant argues that the People should not be permitted to indiscriminately serve an organizational email and have that service imputed to the assigned counsel of record. However, the totality of circumstances of the People's filings do not suggest that they acted haphazardly but rather they demonstrate an intentional course of action to communicate their readiness for trial to defense counsel and the court, and to provide evidence in compliance with their discovery obligations.
This court has considered the consequence of an unreturned email in light of the traditional "mailbox rule," which is an evidentiary presumption that a communication deposited with the mail service, which was sent to the recipient's address with proper postage and the sender's return address, is presumed to have been received if not returned. (see Grant v Senkowski, 95 NY2d 605, 721 NYS 2d 597 [Ct App 2001]). However, the mailbox rule has most often been applied in the context of contractual disputes and, in the instant matter, it must be noted that although the People's disclosure was sent to defense counsel's correct email, their initial COC and SOR were not.
Nevertheless, the court concurs with prior holdings which "normally accord statutes their plain meaning but will not blindly apply the words of a statute to arrive at an unreasonable or absurd result." (see People v Santi, 3 NY3d 234, 242, 785 NYS 2d 405, 410 [2004] [internal quotations omitted]). In this instance, the validity of the People's COC service pursuant to CPL § 245.50 (1) properly "rests on whether after exercising due diligence and making reasonable inquiries [] the prosecutor has disclosed and made available all known material and information subject to discovery" (see People v Williams, 73 Misc 3d 1091, 1099, 157 NYS 3d 877 [Sup Ct, Kings County 2021]).
After filing a COC and SOR with EDDS and sending an email reasonably presumed to have been delivered on January 23, 2023, the People redeclared their readiness for trial by serving defendant with a copy of their COC and SOR in open court on February 27, 2023. Most importantly, defense counsel did not challenge the propriety of the COC based upon the disclosure received from the People, although given an opportunity in court on February 27, 2023 and April 10, 2023, nor does the instant motion set forth any objection to the discovery provided by the People.
Additionally, this court posits that whether the prosecution's actions were made in good faith, and reasonable under the circumstances, must be considered in the context in which the People initially served their COC and SOR. We find the matter of People v Carter, 91 NY2d 795, 676 NYS 2d 523 [Ct App 1998] to be instructive concerning how the court should discern the prosecution's [*4]good faith attempt to communicate their readiness for trial on January 23, 2023. In Carter, the court considered the implications of sending a statement of readiness to the wrong address for three defendants and found that the prosecution had attempted to notify the defendants at their last known address and "[i]n the absence of proof that the readiness statement did not accurately reflect the People's position or that the mailing was made in bad faith, the People had discharged their duty under CPL 30.30" (see Carter at 799 [emphasis added]).
Similarly, this court finds that the People's intent, reasonableness, and good faith were manifest in their multiple filings on January 23, 2023, to wit: the COC and SOR sent to defense counsel via email and filed with the Court, and the contemporaneous service of discovery which triggers the requirement to file the COC pursuant to CPL § 245.50 (1) and CPL § 245.50 (3).
Criminal Procedure Law § 245.35 (4) holds that to facilitate compliance with CPL § 245.20 (1) the court in its discretion may issue an order "[r]equiring other measures or proceedings designed to carry into effect the goals of this article." Accordingly, we decline to dismiss the accusatory instrument because service of the People's COC and SOR on January 23, 2023, was made to "edwards@bronxdefenders.org" rather than "bedwards@bronxdefenders.org." The People's COC and SOR are valid.
Insofar as the court has determined that the People stopped their speedy trial time on January 23, 2023, there is no need to consider their argument that the time pending defendant's hardship hearing is properly excluded from their speedy trial calculation.
III. Defendant's Request for a Hearing if Motion is Denied
Defendant moves the court to order a CPL § 30.30 hearing if his motion is not granted pursuant to CPL § 210.45 (4), and in support of his argument cites to People v Allard, 28 NY3d 41 [2016]. In Allard, the court held that "CPL 210.45 furnishes the general procedure applicable to all motions to dismiss an indictment- including, among others, motions based on defective grand jury proceedings, untimely prosecutions, a defendant's immunity, and CPL 30.30 grounds" (see Allard at 45-46 [emphasis added]).
However, insofar as defendant is charged with three counts of Operating a Motor Vehicle Under the Influence of Alcohol or Drugs, in violation of Vehicle and Traffic Law ("VTL") § 1192 (1) (driving while impaired), § 1192 (2) (driving while intoxicated; per se) and § 1192 (3) (driving while intoxicated), all of which constitute misdemeanor charges, CPL § 210.45 (4) does not apply to the facts at bar.
In any event, even if defendant were not charged with misdemeanors, the court would still find that the People's opposition has settled all factual disputes and there are no unresolved disputes which require a hearing.
IV. The CPL § 30.30 Calculation
Criminal Procedure Law § 245.50 (3) provides that "the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section" (see People v Pierna, 74 Misc 3d 1072, 1087, 163 NYS 3d 897 [Crim Ct, Bronx County 2022] [internal quotation marks omitted]; People v Aquino, 72 Misc 3d 518, 520, 146 NYS 3d 906 [Crim Ct, Kings County 2021]). Courts have determined that a proper COC is one that sets forth the prosecution's efforts to ensure that they have turned over all known [*5]discoverable materials (see People v Adrovic, 69 Misc 3d 563, 574- 575, 130 NYS 3d 614 [Crim Ct, Kings County 2020]; People v Vargas, 76 Misc 3d 646, 652, 171 NYS 3d 877 [Crim Ct, Bronx County 2022]).
In a motion to dismiss misdemeanor charges pursuant to CPL § 30.30 (1), defendant has the initial burden to demonstrate that the prosecution failed to declare readiness for trial within the statutorily prescribed time, 90 days (see CPL § 30.30 (1) [b]); People v Luperon, 85 NY2d 71, 77-78 [1995]). The burden then shifts to the People to identify excludable delays (see Luperon at 78).
In the case at bar, the People's 30.30 calculation commenced at defendant's arraignment on November 27, 2022. When the People filed a valid COC on January 23, 2023, they declared their readiness for trial and stopped their speedy-trial clock. Accordingly, the People were ready for trial 56 days after arraignment, within the time allotted by law (see CPL § 30.30 (1) [b]).
CONCLUSION
Based upon the foregoing, defendant's motion for dismissal of the misdemeanor charges on statutory speedy trial grounds pursuant to CPL § 30.30 is DENIED.
This constitutes the opinion, decision, and the order of the court.
Dated: May 23, 2023Bronx, New York
_________________________________
Hon. Yadhira Gonz¡lez-Taylor, J.C.C.
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