People v Badal
Annotate this CaseDecided on January 3, 2023
Supreme Court, Queens County
The People of the State of New York,
against
Vedeyah Badal, Defendant.
Ind. No. 73680/22
For the Defendant: Lane Blessum, Esq.
For the People: Melinda Katz, District Attorney, Queens County (Mary Lowenburg, Esq., Of Counsel) Cassandra M. Mullen, J.
The defendant is charged with Grand Larceny in the First Degree, Money Laundering in the Second Degree, and Falsifying Business Records in the First Degree. The defendant has moved, pursuant to CPL § 30.30, for an order dismissing the indictment on the ground that over six months have elapsed since the commencement of the criminal action. The People oppose the motion, claiming that the delay chargeable to them is within the statutory limit.
The defendant was arraigned in Criminal Court on April 27, 2021, at which time the criminal action was commenced (People v Osgood, 52 NY2d 37 [1981]). Where, as here, a defendant is charged with a felony, the People must announce readiness for trial within six months of the commencement of the criminal action (CPL §30.30[1][b]). Once a defendant has shown a delay of more than six months, the burden is on the People to prove that certain periods within that time should be excluded (People v Santos, 68 NY2d 859, 861 (1986); People v Berkowitz, 50 NY2d 338, 349 (1980)).
In the case at bar, the Court has reviewed the moving papers, court file, and record and makes the following findings regarding periods of chargeable and excludable time:
April 27, 2021 to December 7, 2021
When the defendant was arraigned on April 27, 2021, the case was adjourned to part APN on June 7, 2021 for Grand Jury Action. On June 7, 2021, the case was administratively adjourned to December 7, 2021. However, on March 20, 2020, Governor Cuomo issued an Executive Order suspending speedy trial time, which was rescinded on May 24, 2021. Therefore, the time period from April 27, 2021, to May 23, 2021, is not chargeable to the People.
On May 24, 2021, when the executive order was rescinded, CPL 30.30 became effective. [*2]The People indicate that on June 18, 2021, they received via email from prior defense counsel, Mr. Calderera, a written discovery waiver, which they have attached to their motion as People's Exhibit 3. The defendant did not indicate an expiration date for his written discovery waiver. The People concede they are responsible for the period between May 24, 2021, and June 17, 2021, when they received the defendant's speedy trial waiver, which is 25 days. The People are not charged with the time from June 17, 2021, to December 7, 2021. Accordingly, 25 days is chargeable to the People for this period.
December 7, 2021 to January 3, 2022
On December 7, 2021, the parties were to appear virtually in part AP6-V. Both the defendant and defense counsel were not present. A bench warrant was ordered stayed and the case was adjourned to January 3, 2021, for grand jury action. It is well- settled law under CPL 30.30(4)(c)(i) that where the defendant has either escaped from custody or has failed to appear when required after having previously been released on bail or on his own recognizance, the period extending from the day the court issues a bench warrant because of the defendant's failure to appear in court when required, to the day the defendant subsequently appear in court pursuant to a bench warrant or voluntarily or otherwise, is excludable time. CPL 30.30(4)(c)(i). The Court of Appeals has made it clear that, in the context of CPL 30.30(4)(c)(i), the "diligence requirement is not applicable where the defendant is deemed 'absent' because 'his location is unknown and he is attempting to avoid apprehension or prosecution.'" People v. Sigismundi, 89 NY2d 587, 591 (1997).
Furthermore, under CPL 30.30(4)(f), the period during which the defendant is without counsel through no fault of the court, except where the defendant proceeds pro se, is excludable. People v. Sydlar, 106 A.D3d 1368, 1369 (3d Dept. 2013). All periods during which the defendant is without counsel through no fault of the court must be excluded, regardless of whether the defendant's lack of representation impeded the People's progress. People v. Huger, 167 AD3d 1042 (2d Dept. 1995). Because neither the defendant nor defense counsel were present on December 7, 2021, no time is chargeable to the People for the period between December 7, 2021 and January 3, 2022.
January 3, 2022 to March 15, 2022
On January 3, 2022, the parties virtually appeared in Part AP6. Defense counsel consented to an adjournment to March 15, 2022. Therefore, no time is chargeable to the People for this period.
March 15, 2022 to May 17, 2022
On March 15, 2022, the parties virtually appeared in Part AP6. Defense counsel consented to an adjournment to May 17, 2022. Therefore, no time is chargeable to the People for this period.
May 17, 2022 to June 8, 2022
On May 17, 2022, the parties virtually appeared in Part AP6. Defense counsel consented to an adjournment to June 8, 2022. Therefore, no time is chargeable to the People for this period.
June 8, 2022 to June 21, 2022
On June 8, 2021, both the People and the defendant appeared virtually in Part AP6, but defense counsel did not appear. The case was adjourned until June 21, 2021. Therefore, no time is chargeable to the People for this period.
June 21, 2022 to September 21, 2022
On June 21, 2022, both the People and the defendant appeared virtually in Part AP6, but [*3]defense counsel did not appear. The case was adjourned until September 21, 2021. Therefore, no time is chargeable to the People for this period. On June 21, the Court also filed a Notice of Motion for Order Terminating Prosecution Pursuant to CPL 180.85. On September 19, the People filed an affirmation in opposition to the Court's CPL 180.85 Motion.
September 21, 2022 to November 9, 2022
On September 21, 2022, the parties appeared in Part 3F, for decision on the court's 180.85 motion and the case was adjourned to November 9, 2022 for decision. Defense counsel did not consent to the adjournment. On November 3, 2021, the defendant filed a CPL 30.30 motion. The People concede that the time between September 21, 2022 and November 2, 2022 is chargeable to the People. The period of time from when a defendant files a motion and the People respond, to when the court renders its decision, is excludable. The People are entitled to a reasonable time to answer defendant's motion. People v. Anderson, 216 AD2d 309 (2d Dept. 1995). Thus, for the period from September 21, 2022, through November 2, 2022, 43 days are chargeable to the People.
November 9, 2022 to December 5, 2022
On November 28, 2022, the People filed the instant indictment, thus causing the Court's 180.85 motion to be deemed denied by operation of law as of that date, and also divesting the local Criminal Court of jurisdiction. As noted by the People in their motion, this also required the defendant to re-file her CPL 30.30 motion in Supreme Court. The defendant filed the instant motion in Supreme Court on December 5, 2022. The People concede the period of time between November 28, 2022 and December 5, 2022. Thus, for the period from November 28, 2022, the divestiture of local Criminal Court jurisdiction, and December 5, the filing of the defendant's motion, 7 days is chargeable to the People.
The total time chargeable to the period to this point is 75 days, which is within the six-month statutory period. There is therefore no basis to dismiss the case on speedy trial grounds.
Based upon the foregoing, the defendant's motion to dismiss the indictment is denied.
This constitutes the decision and order of the Court.
The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.
Dated: January 3, 2023HON. CASSANDRA M. MULLEN, J.S.C.
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