The People of
the State of New York,
against
Michael Kelly, Defendant.
|
2013KN058780
For the People:
District Attorney, Kings County, by ADA Gillian DiPietro
For the Defendant:
Kenneth F. Smith
Laura R. Johnson, J.
On July 30, 2013, the defendant was arraigned on a misdemeanor complaint
charging him with several offenses, the top count being a violation of PL §
120.00(1), Assault in the Third Degree, a Class A misdemeanor. By Notice of Motion
filed April 24, 2013, defendant moves to dismiss the accusatory instrument upon the
ground that he has been denied his statutory right to a speedy trial (CPL
§170.30[1][e] and CPL §30.30[1][b]). The People oppose defendant's motion.
For the following reasons, defendant's motion to dismiss is granted.
ANALYSIS
CPL § 30.30 requires that, allowing for any time subject to exclusion,
the People must be ready to try a defendant accused of a misdemeanor within 90 days of
the commencement of the action (CPL § 30.30[1][b]). The People's declaration of
readiness may be made in open court, or by filing and serving of an off-calendar
Certificate of Readiness. CPL § 30.30(1)(b); People v. Stirrup, 91 NY2d
434, 440 (1998). It is not enough for the People merely to say that they are ready; they
must "in fact be ready to proceed at the time they declare readiness." People v.
Chavis, 91 NY2d 500, 505 (1998). Furthermore, CPL § 30.30 is a speedy
trial provision, and the People must therefore be ready for trial, not merely ready
for some pre-trial proceeding. People v. Chavis, 91 NY2d at 502; People v.
Khachiyan, 194 Misc 2d 161 (Crim Court, Kings County 2002). Where a statement
of readiness is followed by a statement of non-readiness, the earlier statement will be
[*2]deemed to have been illusory absent justification for
the subsequent unreadiness. People v. Sibblies, 22 NY3d 1174 (2014)
Here, the defendant has alleged a delay in excess of 90 days. Accordingly,
the burden of demonstrating sufficient excludable time is on the People. People v.
Santos, 68 NY2d 859 (1986); People v. Berkowitz, 50 NY2d 333, 349
(1980).
Time Calculations
The defendant alleges that 121 days of chargeable time had elapsed as of March 6,
2014. The People take the position that only 87 days of chargeable time had elapsed as of
March 12, 2014. The Court, having reviewed the defendant's moving papers, the People's
responding papers, the court file, and the applicable law, reaches a third conclusion: the
People have accrued 93 days of chargeable time.
July 30, 2013 to August 2, 2013 — Arraignment to Conversion of
Complaint [3 days charged]
Defendant was arraigned on the accusatory instrument on July 30, 2014. The case
was adjourned to August 2, 2013. On August 2, the People filed a supporting deposition,
thereby fully converting the accusatory instrument to a triable non-hearsay
information.
The People concede that they should be charged with 3 days. The counting of
chargeable time begins upon the commencement of the action, which in this case was at
the arraignment on July 30, 2013. People v. Stiles, 70 NY2d 765 (1987). The
month of July has 31 days. The People converted the charging instrument on August 2.
The People are charged with 3 days.
August 2, 2103 to November 7, 2013 — Conversion of Complaint
to Calendared for Hearings and Trial [0 days charged]
The parties agree that all time after the conversion of the complaint is excludable
until November 7, 2013, the first date on which the case was on the calendar for hearings
and trial.
Although the parties do not dispute the excludability of any of these adjournments,
some discussion of what transpired during this interval is significant to the interpretation
of later adjournments. On August 2, 2013, the case was on the calendar for the People to
convert any hearsay in the complaint. When the People filed a supporting deposition,
they also announced that they were "ready." (P's Ex. 1, Minutes of August 2, 2013 at 2.)
On August 14, 2013, the People filed and served discovery materials and again
announced that they were "ready." (Court Action Sheet, noting "ăR"). The People
maintain that these declarations render all subsequent adjournments subject to assessment
as "post-readiness" adjournments. (See P's Mtn at 6.) This is not correct.
Not all statements of readiness are equal. For instance, a statement that the
People are ready for pretrial hearings is not a statement of readiness for trial sufficient to
toll the 30.30 clock. People v. Chavis, 91 NY2d 500 (1998). It has long been
noted that in Brooklyn Criminal Court, there is "a culture that has permitted the People to
use the word ready' in a myriad of situations not contemplated by CPL 30.30 and the
governing case law." People v. Khachiyan, 194 Misc 2d 161, 164 (Crim Court,
Kings County 2002). Among these are the People's practice of declaring readiness
routinely upon conversion when, if pressed, they concede that the declaration means only
that they have converted the accusatory instrument. Id. This, of course, is not the
trial readiness required by CPL § 30.30.
Here, after the People's first statement that they were "ready," the case was adjourned
for discovery. When the parties returned to court, the People served and filed discovery.
Because the [*3]Brooklyn District Attorney's Office
routinely grants "open file discovery," it is generally not necessary for the defense to
make formal motions. Instead, the periods of adjournment for Discovery By Stipulation
(DBS, as it is called), are excludable as the equivalent of pre-trial motions under CPL
§ 30.30(4)(a), as are oral requests for discovery. People v. Dorilas, 19 Misc 3d 75, 76-77 (App Term, 2nd
and 11th Jud Dists 2008); see also People v. Ramos, 39 Misc 3d 1212(A) (Crim
Ct, Kings County 2013) (unreported).
The defendant was not in court when the People filed and served discovery, and a
bench warrant was ordered. The subsequent adjournment, as well as the adjournment
when the defendant appeared the next day, are excludable. This is undisputed.
The People are charged with 0 days.
November 7 to November 27 — Adjournment for Hearings and
Trial [20 days charged]
On November 7, 2013, the first time the case was on for hearings and trial,
the People announced that they were not ready, and requested a 14 day adjournment.
They gave no reason for their unreadiness, or for the request for a two week
adjournment. The court adjourned the case to November 27. Also at that November 7
appearance, defendant's attorney made a "verbal request of the prosecutor for the BCI
photo, as well as the 9-1-1," which he asserted "are not only Rosario material but Brady
material," and he further requested "the psych history of the complaining witness" (P's
Ex. 4, Minutes of November 7, 2013, at 3).
Contrary to defendant's assertion (Motion ¶¶ 21-22), the People
were not instructed on November 7 that they would be charged with all time until they
filed a written Statement of Readiness. Instead, the Court noted on the record, "I'm
putting that on for hearings and trial. People are requesting 14 days," and asked the
defense attorney, "Is November 27th good for counsel?" (P's Ex. 4, Minutes of
November 7, 2013, at 4). However, as discussed above, the People's prior
announcements that they were "ready" at the time they converted the Complaint and filed
discovery materials do not necessarily make the additional time added on by the court
excludable as post-readiness delay due to court congestion. People v. Chavis, 91
NY2d 500 (1998). In fact, this Court rejects the People's contention that this was a
"post-readiness" request for which they should be charged only the 14 days they
requested. Notably, when the case was next on the calendar, on November 27, the People
were still not ready. This time, they announced, "The office has not completed its
investigation yet."
Although the People's earlier declarations of "readiness" were made in open
court rather than by off-calendar written Statement of Readiness, the situation here is
otherwise indistinguishable from the situation in People v. Sibblies, 22 NY3d 1174, 1176, 1180 (2014). The
People must therefore be charged with the entire 20 day adjournment, irrespective of
whether there was any intervening written Statement of Readiness (which, during this
adjournment, there was not). In light of the People's well-documented custom of stating
"ready" when they simply mean that they have taken the next necessary step — for
instance, converting the complaint or providing discovery — the Court declines to
assume that the People's statements on August 2 or August 14 were genuine declarations
of trial readiness. Moreover, any such claim is undermined by the People's concession
[*4]on November 27 that they were unable to proceed to
trial because their investigation of the case was ongoing.[FN1]
The People are charged with 20 days.
November 27, 2013 to January 22, 2014 — People Not Ready [56
days charged]
As noted above, on November 27, 2013, the People were still not ready, and again
stated, "The office has not completed its investigation yet." (P's Ex. 4, Minutes of
November 27, 2013, at 2.) Although the People requested a 7-day adjournment, the court
stated that, "since they were not ready last time," the People would be charged with all
time until they filed a written Statement of Readiness. (P's Ex. 4, Minutes of November
27, 2013, at 3-4.) The case was adjourned to January 22, 2014 for hearing and trial,
during which time no Statement of Readiness was filed. The parties agree that none of
this time is excludable. The People are charged with 56 days.
January 22 to January 30, 2014 — People Not Ready to Filed
Statement of Readiness [8 days charged]
As of January 22, 2014, the People had not filed any Statement of Readiness. The
People once again stated that they were not ready, and requested an adjournment of 10
days. However, the court instead adjourned the case to March 6, and warned the People
that they would be charged with all time until they filed a Statement of Readiness (See,
P's Ex. 5, Minutes of January 22, 2014 at 3; Court Action Sheet: "People remain charged
until SOR"). The case was adjourned to March 6 for hearing and trial.
On January 30, 2014, the People filed a Statement of Readiness with the court, and
served a copy on defense counsel by certified mail. The document is dated January 29,
but the court's stamp indicates it was filed on January 30, and the People concede as
much. The People are charged with 8 days.
January 30 to March 6 — SOR to In-Court Statement of
Unreadiness [0 days charged]
On March 6 the People were again not ready (P's Ex. 7). It was explained that the
assigned ADA was being transferred to a different department, and the case would have
to be reassigned. The People requested a six day adjournment, and acknowledged the
Court's warning that they would be charged with all time until they filed a statement of
readiness.
Contrary to defendant's contention, the People's situation on March 6 does
not render their January 30 written Statement of Readiness illusory. The People's
statement on the record of their reason for needing a brief adjournment is sufficient to
rebut any challenge to the presumption that [*5]the
original written Statement of Readiness was truthful and accurate. People v. Sibblies, 22 NY3d
1174, 1180 (2014) (Graffeo, concurring). The People are charged with 0 days.
March 6 to March 12 — In-Court Statement of Unreadiness to
Written Statement of Readiness [6 days charged]
Notwithstanding the reason for their not being ready on March 6, and
without regard to how long an adjournment the People were requesting, the Court
adjourned the case to April 29, 2014, and once again instructed the People that they
would be charged with all time until they again filed a Statement of Readiness.
On March 12, 2014, the People filed a Statement of Readiness with the
court, and served a copy on defense counsel by certified mail. The document is dated
March 11, but the court's stamp indicates it was filed on March 12, and the People
concede as much. The People are charged with 6 days.
March 12, 2014 to April 24, 2014 — Statement of Readiness to
Defendant's 30.30 Motion [0 days charged]
The last record statement of the People's trial readiness remains their written
March 12 Statement of Readiness, which is presumed to be truthful and accurate and
which, indeed, is not here challenged by the defendant. See People v. Carter, 91
NY2d 795, 799 (1988); People
v. Miller, 113 AD3d 885, 887 (3d Dept 2014). Before the arrival of the next
calendar date of April 29, 2014, the defendant filed the present speedy trial motion on
April 24, 2014. The filing of this motion tolls the speedy trial clock. CPL §
30.30(4)(a).
CONCLUSION
The People are charged with 93 days in total. Accordingly, defendant's
motion is GRANTED.
This constitutes the Decision and Order of the Court.
DATED:July 7, 2014
Brooklyn, New York
/s/.
Laura R. Johnson, J.C.C.
Footnotes
Footnote 1:Nor are the People saved
from being charged for this time by defendant's having made an additional "verbal
request" for "Brady material." A date had previously been set for the People to provide
discovery materials, and they had met that deadline in August. Defendant then requested
these additional materials, which apparently had not yet been provided as of November 7.
The People may not postpone their obligation to be ready for trial merely by providing
discovery materials to the defense in piecemeal fashion. There is no exclusion of the time
prior to the production of Rosario material, which may technically wait until the
commencement of trial (CPL § 240.45), and the People have a continuing
obligation to disclose exculpatory material, regardless of the trial-ready posture of the
case (CPL § 240.60).