The People of
the State of New York
against
Anthony Simon, Defendant.
|
2014KN067811
For Defendant:
Alaina Dartt
The Legal Aid Society
111
Livingston Street
Brooklyn, NY 11201
For the People:
Kenneth Thompson, District Attorney, Kings County
by Yasmin Dwedar,
Assistant District Attorney, Brooklyn, of Counsel
Andrew Borrok, J.
The instant matter is before the court because the defendant moves to dismiss the
pending charges on the grounds that he has been denied his right to a speedy trial
pursuant to Criminal Procedure Law (CPL) §§ 30.30(1)(b) and 170.30(1)(e),
arguing that 107 have elapsed that are chargeable as non-excludable time pursuant to
CPL § 30.30(1)(b).[FN1]
The People oppose the motion and contend that only 57 days have elapsed that are
chargeable as non-excludable time pursuant to CPL §30.30(1)(b). For the reasons
set forth below, the court finds that in fact 72 days have elapsed that are chargeable as
non-excludable time pursuant to CPL § 30.30(1)(b). Accordingly, the defendant's
motion is denied.
DISMISSAL PURSUANT TO CPL § 30.30(1)(b)
Pursuant to CPL § 30.30(1), the applicable speedy trial time is determined
based on the highest charge in the accusatory instrument. People v Walton, 165
Misc 2d 672, 674 (Crim Ct, Richmond County 1995). In this case, the highest crimes
charged, Petit Larceny (PL § 155.25) and Criminal Possession of Stolen Property in
the Fifth Degree (PL § 165.40), are misdemeanors punishable by a sentence of
imprisonment not to exceed one year. PL § 70.15(1). Where a defendant is charged
with a misdemeanor punishable by a sentence of imprisonment of more than [*2]three months, a speedy trial motion must be granted where
the People are not ready for trial within 90 days of commencement of the criminal action.
CPL § 30.30(1)(b).
The defendant has the initial burden of showing, through sworn allegations
of fact, that there has been an inexcusable delay beyond the time allotted by the statute.
People v Santos, 68 NY2d 859, 861 (1986). Once the defendant has made that
showing, the People bear the burden of demonstrating sufficient excludable time in order
to withstand a motion to dismiss. Id.
Ready for trial for CPL § 30.30(1) purposes necessarily has two requirements. First,
the People must communicate their readiness on the trial court's record either by stating
that they are ready for trial in open court on the record transcribed by a stenographer or
by a statement of readiness (SOR) sent by the People on defense counsel and the
appropriate court clerk to be placed in the original record. See People v Kendzia,
64 NY2d 331, 337 (1985). Second, the People must in fact be ready to proceed. "The
statute contemplates an indication of present readiness, not a prediction or expectation of
future readiness." Id. at 337. Additionally, the People cannot be ready for trial
until they have converted a misdemeanor complaint to an information. People v
Caussade, 162 AD2d 4, 8 (2d Dept 1990). Pre-readiness delays', i.e. the time for
CPL § 30.30 purposes prior to the time in which the People have both converted a
misdemeanor complaint into an information and are ready for trial, are charged as
non-excludable time under CPL § 30.30(1)(b) (except to the extent that they may
otherwise be excluded under CPL § 30.30(4)). See People v McBee, 172
Misc 2d 196 (Sup Ct, Kings Co, 1997). Discovery by stipulation (DBS) in Kings County
is in lieu of motion practice, and adjournments for DBS are excluded from speedy trial
calculations irrespective of whether the People are ready for trial. CPL §
30.30(4)(a); People v
Dorilas, 19 Misc 3d 75, 76-77 (App Term, 2d Dept 2008); People v
Khachiyan, 194 Misc 2d 161, 166 (Crim Ct, Kings County 2002).
On September 9, 2014, the defendant was arraigned. At arraignments, the defendant was
charged with Petit Larceny (PL § 155.25), Criminal Possession of Stolen Property
in the Fifth Degree (PL § 165.40) and Possession of Burglar's Tools (PL §
140.35). The People served and filed the supporting deposition of Police Officer
Christopher Ferreira which supporting deposition converted the charge of Possession of
Burglar's Tools (PL § 140.35). The People, however, did not have the supporting
deposition of the eyewitness, Andrew Han, which supporting deposition was necessary to
convert the remaining charges of Petit Larceny (PL § 155.25) and Criminal
Possession of Stolen Property in the Fifth Degree (PL § 165.40). The People did not
announce that they were ready on any of the charges at that time and the court adjourned
the matter until October 23, 2014 to AP2 for the supporting deposition.
On October 23, 2014, the People served and filed the supporting deposition of Andrew
Han which supporting deposition converted the charges of Petit Larceny (PL §
155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL §
165.40). When the court inquired as to whether the People had the supporting deposition
of Police Officer Christopher Ferreira (which supporting deposition had already been
served and filed at arraignments), the People mistakenly indicated that they did not have
that supporting deposition. Tr at 2, lines 13-14, AP2 (Oct. 23, 2014); Tr at 2, lines 16-19,
Arraignments (September 9, 2014). The court indicated that the Petit Larceny (PL §
155.25) and Criminal Possession of Stolen Property in the Fifth Degree (PL §
165.40) charges were converted and adjourned the case until December 2, [*3]2014 for DBS and full conversion. Significantly, at no time
at the October 23rd appearance or at any other time off-calendar by a statement of
readiness did the People announce that they were ready for trial on any of the charges. Tr
at 2, lines 15-16, All Purpose Part 2 (Oct. 23, 2014). Accordingly, the case continued to
be in a pre-readiness posture and the entire 44 day period from September 9, 2014 until
October 23, 2014 is charged as non-excludable time pursuant to CPL §
30.30(1)(b).
The People are entitled to a reasonable adjournment to prepare for hearings and trial once
hearings are ordered. People v Greene, 223 AD2d 474 (1st Dept), appeal
denied 88 NY2d 879 (1996); People v Hernandez, 268 AD2d 344 (1st Dept),
lv denied 95 NY2d 253 (2000); People v Lucas, 25 Misc 3d 1213(A), (Crim Ct, Kings
County 2009). On December 2, 2015, the People dismissed the charge of Possession of
Burglar's Tools (PL § 140.35). The People did not have DBS and the matter was
adjourned until January 5, 2015 for DBS. On January 5, 2015, the People served and
filed DBS and the matter was further adjourned until February 4, 2015, for hearings and
trial. Accordingly, the entire period from October 23, 2014 until January 5, 2015 is
excludable time pursuant to CPL § 30.30(1)(b).
An adjournment for motion practice and the period during which the motion is "under
consideration by the court" is excludable time. CPL § 30.30(4)(a); People v Stewart, 57 AD3d
1312, 1314 (3rd Dept 2008). On February 4, 2015, the People served and filed a
motion to consolidate this case [FN2]
with the defendant's other case [FN3]
. The court adjourned the case until March 27, 2015 for the court's decision. On February
27, 2015, the defendant served and filed an Opposition to People's Motion to
Consolidate. On March 27, 2015, the motion to consolidate was still under consideration
by the court and the matter was further adjourned until April 20, 2015. On April 20,
2015, the court denied the People's motion to consolidate and the matter was adjourned
again until May 28, 2015 for hearings and trial. Accordingly, the entire period from
January 5, 2015 until May 28, 2015 is excludable time pursuant to CPL §
30.30(1)(b).
Post-readiness delays can be chargeable to the People only if they become unready.
People v Anderson, 66 NY2d 529 (1985). When a case is in a post-readiness
posture, for CPL § 30.30 purposes, specific adjournments requested by the People
are chargeable as non-excludable time, but adjournments that extend beyond the specific
adjournment requested by the People are excluded time. People v Bruno, 300
AD2d 93, 95 (1st Dept), lv denied 100 NY2d 641 (2003); People v
Dushain, 247 AD2d 234, 236 (1st Dept), appeal denied 91 NY2d 1007
(1998). For example, if the matter is on the calendar for hearings and trial and the People
announce "not ready" and request a specific adjournment of seven days and, due to
calendar conflicts, the next court date is scheduled for the eighth day, only seven days
(i.e., and not eight days), for CPL § 30.30 purposes, are charged as non-excludable
time. However, in a pre-readiness posture, as the court previously noted, the entire
adjournment is chargeable to the People unless otherwise specifically excluded under
CPL § 30.30(4). See Bruno, 300 AD2d.
On May 28, 2015, the People indicated that they were not ready for trial because the
assigned assistant district attorney was engaged on trial in Trial Part 2. The People
requested [*4]seven days and the matter was adjourned
until June 8, 2015 for hearings and trial and to track the other case [FN4]
. However, because the People have never communicated their actual readiness in open
court or filed with the court and served on defense counsel a statement of actual
readiness for CPL § 30.30 purposes, the case is not in a post-ready posture. The
case continues to be in a pre-readiness posture. Accordingly, the entire 11 day period
between May 28, 2015 and June 8, 2015 is chargeable as non-excludable time pursuant
to CPL § 30.30(1)(b).
On June 8, 2015, the People again indicated that they were not ready to proceed to trial
because the assigned assistant district attorney was on trial again in Trial Part 2. The
People requested seven days and the matter was adjourned to June 25, 2015 for hearings
and trial. However, as discussed above, inasmuch as the matter is not in a post-ready
posture, the entire period between calendar dates continue to be charged for CPL §
30.30(1)(b) purposes. Accordingly, the entire 17 day period between June 8, 2015 and
June 25, 2015 is chargeable as non-excludable time pursuant to CPL §
30.30(1)(b).
On June 25, 2015, the People indicated that they were ready for trial. The defendant
however served and filed the instant motion to dismiss on speedy trial grounds pursuant
to CPL § 30.30(1)(b). The court adjourned the case until August 11, 2015 for the
court's decision. Accordingly, for CPL § 30.30 purposes, the entire period from
June 25, 2015 until August 11, 2015 is excludable time.
CONCLUSION
In sum, this court finds that the People are charged with 72 days of non-excludable
time. Accordingly, the defendant's motion to dismiss pursuant to CPL § 30.30(1)(b)
is denied.
The foregoing constitutes the decision and order of the court.
Dated: August 10, 2015Brooklyn, New York
ANDREW BORROK
J.C.C.
Footnotes
Footnote 1:The defendant argues
that the People failed to serve and file the supporting deposition of Andrew Han and the
People have therefore never converted the complaint into an information. Defendant's
Notice of Motion, pg. 3. However, on October 23, 2014, the People served and filed the
supporting deposition of Andrew Han which supporting deposition converted the
complaint into an information.
Footnote 2:Docket 2014KN067811.
Footnote 3:Docket 2014KN085876.
Footnote 4:Docket 2014KN085876