The People of
the State of New York,
against
Carl Jackson, Defendant
|
2013KN089199
For the King's County District Attorney's Office, KeAupuni Akina, Esq.
For Defendant, Legal Aid Society, Jenny S. Cheung, Esq.
John T. Hecht, J.
Defendant Carl Jackson is charged with the unclassified misdemeanors of Driving
While Intoxicated (Vehicle and Traffic Law [VTL] § 1192 [2] and [3]) and
Aggravated Driving While Intoxicated (VTL § 1192 [2a] [a]), and the traffic
infractions of Driving While Ability Impaired (VTL § 1192 [1]), Excessive Speed
(VTL § 1180 [a]), Operation Outside of Lane (VTL § 1128 [a]), and Failure to
Obey Traffic Control Signal (VTL § 1111 [d] [1]), based on the allegation that at
approximately 12:50 AM on November 22, 2013, in Brooklyn,
Defendant was observed driving a 2005 Dodge Caravan New York State
License No. EVV64C9 at a high rate of speed, failing to stay in [his] lane and failed to
stop at a steady red light [and] defendant exhibit[ed] signs of intoxication: to wit,
slurred speech, red watery eyes, odor of alcoholic beverage on breath and an unsteady
gait. [And] defendant submitted to a chemical test to determine [his] blood alcohol
concentration with a result of .191% alcohol content.
Defendant moves, pursuant to Criminal Procedure Law (CPL) sections
170.30 (1) (e), 30.20 and 30.30 (1) (b), for an order dismissing this prosecution on
speedy-trial grounds. The People oppose. The motion has been referred to me for
decision. Based on the parties' submissions and my review of the record, and for the
reasons that follow, defendant's CPL 30.30 (1) (b) motion is granted as to the
misdemeanor offenses and his 30.20 motion is denied.
The action commenced on November 22, 2013, when defendant was arraigned. The
case was adjourned to January 13, 2014 for discovery. 0 days are included (CPL 30.30
[4] [a] [period for defendant's benefit, including discovery, excluded]; People v Dorilas, 19 Misc 3d
75, 76 [App Term, 2d Dept 2008] [time for discovery by stipulation excluded]).
On January 13, the People served and filed discovery and announced that they were
ready for trial. The case was adjourned to February 26 for trial. On February 26, the
People were not ready for trial and requested 8 days to prepare for trial. The case was
adjourned to April 3. On April 3, the People again were not ready for trial and requested
8 days to prepare a witness. The presiding judge indicated that the People would be
charged until they served and filed a statement of readiness. The case was adjourned to
May 14. The People served and filed an off-calendar statement of readiness on April
7.
On May 14, the People were not ready for trial because the assigned
Assistant District Attorney was in training. The People requested a 13-day adjournment.
The case was adjourned to June 25 for trial.
On June 25, the People were not ready because a police witness was
unavailable; they requested 8 days. The case was adjourned for trial the requested 8 days,
to July 3.
On July 3, the People were not ready because the assigned Assistant District
Attorney was sick; they requested 8 days. The presiding judge indicated that the People
would be charged until they served and filed a statement of readiness. The case was
adjourned to August 4. There was [*2]no intervening
statement of readiness.
On August 4, the People were not ready because the arresting officer had not
been notified. They requested 7 days. Once again, the presiding judge stated that the
People would be charged until they served and filed a statement of readiness. The case
was adjourned to October 1 for trial. On August 15, the People served and filed a
statement of readiness.
On October 1, the People were not ready because the arresting officer was
off that day. The People requested 1 day. The presiding judge indicated that the People
would be charged until they served and filed a statement of readiness. The case was
adjourned to December 11 for trial. On October 3, the People filed another statement of
readiness.
On December 10, defense counsel filed the motion under consideration, and
on December 11, the case was adjourned to January 30, 2015, for decision.
Relying on the Court of Appeals' decision in People v Sibblies, 22 NY3d 1174 [2014], the defense
argues that the People should be charged with eight adjournments (from January 13 to
February 26; February 26 to April 3; April 3 to May 14; May 14 to June 25; June 25 to
July 3; July 3 to August 4; August 4 to October 1; and October 1 to October 3) because
the People were not ready for trial eight successive times.
In Sibblies, the People filed an off-calendar statement of readiness on
February 22, 2007, and then subpoenaed medical records of the complainant 8 days later
(Sibblies, 22 NY3d at 1175). At the next court date, on March 28, 2007, they
announced that they were not ready for trial because they were "continuing to investigate
and were awaiting medical records" (id.). The issue addressed in Sibblies
was whether the off-calendar statement of readiness was belied by the People's
subsequent failure to be ready when the case was next calendared.
A concurring opinion in Sibblies would impose a burden on the
People, if challenged, to "show in response to such a challenge that some exceptional fact
or circumstance arose after their declaration of readiness so as to render them presently
not ready for trial" if the People wish to "preserve[] such portion of the readiness period
as remained available when readiness was originally declared" (id. at 1178). To
the extent that Sibblies may be read to contemplate such a burden, the People
failed to meet it on February 26 and April 3, when, on the record at the calendar calls,
they asked for additional time to prepare for trial. I note that in their papers opposing the
present motion the People also fail to explain why they still needed to prepare for trial in
February and April after they had announced that they were ready for trial in
January.
A second concurrence in Sibblies presumed "that a statement of
readiness is truthful and accurate" (id. at 1180-81 [citing People v Acosta,
249 AD2d 161, 161 [1st Dept 1998]]), but would charge the People with speedy-trial
time when a statement of readiness is followed by an unexplained lack of readiness and
there is "proof that the readiness statement did not accurately reflect the People's
position" (id. [quoting People v Carter, 91 NY2d 795, 799 [1998]]). Here,
as in Sibblies, the People's own statements in February and April that they needed
additional time to prepare for trial proved that their January declaration of trial readiness
was illusory.
The People argue that Sibblies does not apply where, as here, the
People announced in court, rather than off-calendar, that they were ready for trial.
It is true that Sibblies factually dealt with an off-calendar statement
of readiness and that there is language in Chief Judge Lippman's concurrence suggesting
that the off-calendar nature of the statement of readiness was significant
(Sibblies, 22 NY3d at 1178 ["Where the People file an [*3]off-calendar certificate of readiness and subsequently
declare at the next court appearance that they are not ready, a defendant understandably
may be perturbed . This case, however, illustrates the need for clarification. "]).
It is also true that, as the People say, they announced ready for trial in court,
rather than off-calendar, on January 13, 2014. But January 13 was not a trial date; it was
a date for the People to serve discovery. The readiness statement then, at a time when the
People would not be expected to start a trial and have their witnesses available, is
effectively no different from an off-calendar statement of readiness. It may be true but it
does not start a trial. As Chief Judge Lippman observed in his Sibblies
concurrence, when the People announce their readiness off-calendar, "the defendant is
prevented from availing herself of the People's readiness . This would be readiness in the
air, without readiness on the ground. If the defendant cannot ask for a trial, the People's
readiness has served effectively to harm the defendant by delaying the running of the
statutory period" (Sibblies, 22 NY3d at 1178). Here, similarly, by announcing
"ready" on a date when the case was not on for trial (and thus the "defendant cannot ask
for a trial"), the People accomplished the same thing as they would have with an
off-calendar statement of readiness: they attempted to toll the 30.30 clock without having
to actually be ready for trial.
The concurrence of Judge Graffeo in Sibblies provides even less
support for the People's argument that Sibblies applies only to off-calendar
statements of readiness, for that opinion makes no distinction between an in-court and an
off-calendar statement of readiness. Its reasoning applies to both: any statement of
readiness must (and is presumed to) reflect actual readiness but can be belied by a
subsequent lack of readiness and proof that the readiness declaration was untrue.
Accordingly, on either reading of Sibblies, the People are charged
with the period from January 13 to April 7 (84 days), when they filed a new statement of
readiness.
The People's explanation on May 14 that the assigned Assistant District
Attorney was in training meets their burden to explain why they were not ready on that
day without also undermining the prior readiness statement; therefore, their requested 13
days alone are chargeable, as they concede.
On June 25, their explanation that they needed 8 additional days to secure a
witness is, also as conceded, a sufficient explanation to preserve any remaining
speedy-trial allotment.
While the sickness of the assigned Assistant District Attorney on July 3,
requiring 8 days, and the need on August 4 for 7 days and on October 1 for 1 day to
secure the arresting officer may not have undermined the prior statements of readiness,
the presiding judge, apparently not presuming continued readiness based on the history
of the case (see People v Betancourt, 217 AD2d 462, 466 [1st Dept 1995]),
advised the People on July 3, August 4 and October 1, that they would be charged not
only with the time that they requested but also until a new statement of readiness was
filed. I need not address these adjournments other than to note that the People concede
32 days from July 3 until August 4, 11 days from August 4 until the August 15 statement
of readiness, and 2 days from October 1 until the October 3 statement of readiness.
On December 10, defense counsel filed the present motion and on December
11 the case was adjourned for decision to January 30, 2015. 0 days are chargeable (CPL
30.30 [4] [a] [period for motion practice excluded]).
Based on this analysis, the total chargeable time is 150 days. Because this
exceeds the [*4]90-day allotment (see CPL §
30.30 [1] [b]), defendant's motion to dismiss on speedy-trial grounds, pursuant to CPL
170.30 (1) (e) and 30.30 (1) (b), is granted as to the misdemeanor charges.
The speedy-trial statute does not apply to traffic infractions (see People v
Gonzalez, 168 Misc 2d 136 [App Term, 1st Dept 1996]). This follows from the fact
that CPL 30.30 applies by its terms to felonies, misdemeanors, and violations, whereas
traffic infractions are none of these. (They are "petty offenses" but not "violations"
[see Penal Law § 10.00 [3], [4], CPL § 1.20 [39]]). Nonetheless,
defendant has a constitutional right to a speedy trial embodied in CPL 30.20, and he
asserts that it was violated here.
In determining whether a defendant has been denied his constitutional right
to a speedy trial, the following factors must be considered: "(1) the extent of the delay;
(2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not
there has been an extended period of pretrial incarceration; and (5) whether or not there
is any indication that the defense has been impaired by reason of the delay" (People v
Taranovich, 37 NY2d 442, 445 [1975]).
Approximately 8 months have passed between the People's April 7 readiness
statement and the defense motion to dismiss. Although the April statement of readiness
was filed more than 4 months after defendant's arrest, bringing the total time this case
was pending prior to defense's motion to approximately 13 months, an adjournment of
almost 2 months of that time was for defendant's benefit (to provide him with discovery),
and court congestion explains much of the remainder. Courts have refused to set a
bright-line rule as to when the People's delay in prosecution exceeds defendant's right to
a speedy trial (id.). The Appellate Term has found that a 14-month delay does not
require a case to be dismissed (see People v Gordon, 2 Misc 3d 134[A] [App Term, 9th
& 10th Jud Dists 2001] [14-month delay not sufficient to require dismissal;
defendant failed to establish delay impaired defense], lv denied 3 NY3d 674
[2004]). The delay in this case, which is less than 14 months - in fact only about a third
of that when considering time chargeable to the prosecution - is not of constitutional
dimension.
Second, the delay in this case is attributable not only to the People's requests for
adjournments but also, as noted, to defendant's request for discovery and to court
congestion. The delay attributable to the People was often due to the unavailability of
witnesses or an Assistant District Attorney's unavailability because of training or illness.
These do not appear to be deliberate attempts by the People to keep defendant from his
day in court (Taranovich, 37 NY2d at 446).
Third, although the traffic infractions at issue are minor offenses that should be
disposed of quickly (see People v Letterio, 16 NY2d 307 [1965] [traffic
infractions are a form of misconduct distinguishable from more serious breaches of the
law or crimes]), they were linked to more serious charges until the present statutory
dismissal motion was here granted.
Fourth, there has been no pretrial incarceration.
Fifth, although defendant contends that the passage of time has impaired his memory
as well as that of potential witnesses, this bare claim is not specific enough to allow the
Court to conclude that the delay may have affected defendant's likelihood of acquittal
(Taranovich, 37 NY2d at 447).
Together, the factors do not indicate that defendant has been deprived of his
constitutional right to a speedy trial. Accordingly, his motion pursuant to CPL 30.20 is
denied.
The foregoing constitutes the decision and order of the Court.
Dated: January 28, 2015
Brooklyn, New York
John T. Hecht
J.C.C.