Justice Court of the Town of Pleasant Valley, Dutchess County, August 16, 2021

Thomas N.N. Angell, Public Defender, Poughkeepsie (Sara Treumann of counsel), for defendant.

William V. Grady, District Attorney, Poughkeepsie (Heather A. Ryan of counsel), for plaintiff.

The defendant, by motion, seeks an order granting continued discovery, dismissal of the accusatory instrument for facial insufficiency, dismissal based on the grounds that the defendant was denied the right to a speedy trial, a reservation of the right to a suppression hearing, a Huntley hearing, disclosure of Brady material, a Sandoval/Ventimiglia hearing, and leave to file additional motions. The defendant, Kyle R. Piney, was charged by misdemeanor information with having committed the offense of assault in the third degree in violation of Penal Law § 120.00. Also filed with the information was a supporting deposition signed by Jason Russell.

It is alleged that this offense occurred on August 22, 2020, in the Town of Pleasant Valley, County of Dutchess, State of New York. The defendant was arraigned on September 22, 2020, with the Public Defender present at arraignment.{**73 Misc 3d at 537}

The People have indicated all discovery material has already been provided to the defendant's attorney. A certificate of compliance was filed by the People on October 11, 2020, and July 16, 2021. Furthermore, the People are aware of their continuing obligations with regard to discovery. It is directed that they continue to comply with their continuing obligations to provide the defense attorney with any discoverable information in their possession.

An information is facially sufficient when a factual portion of the instrument, together with any supporting depositions, (1) alleges nonhearsay facts that would give the court reasonable cause to believe that the defendant committed the offense, and (2) establish, if true, every element of that offense. (See CPL 100.40 [1].)

"Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." (CPL 70.10 [2] [internal quotation marks omitted].)

The defendant contends that the factual allegations set forth in the information failed to establish every element of assault in the third degree. Penal Law § 120.00 (1) provides that "[a] person is guilty of assault in the third degree when . . . [w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person." Physical injury is defined as "impairment of physical condition" or "substantial pain." (Penal Law § 10.00 [9].)

[1] The information, together with the supporting deposition, allege that the victim was punched by the defendant several times, then pushed down several stairs, causing the victim to hit his head on the ground, causing two lacerations that required medical attention. Further, it was alleged the defendant began to punch the victim an unknown number of times and pushed the victim down the stairs. When the victim got up, he was bleeding from his face. The victim only refused to go to the hospital because he was concerned about the coronavirus.{**73 Misc 3d at 538} This information is contained in the supporting deposition.

Taken together, this court finds that the information is facially sufficient to support the charge of assault in the third degree. Termination of an assault charge at this juncture would deprive the People of the opportunity at trial to detail the nature and extent of the injury by introducing medical evidence or other relevant proof that the victim suffered impairment of a physical condition or substantial pain. Accordingly, this court will not dismiss the accusatory instrument as insufficient.

The defendant seeks a dismissal on the ground his "speedy trial" rights were violated. The defendant claims the People's statement of readiness filed on October 11, 2020, was invalid. It is claimed the statement is invalid because it lacks the certification required by CPL 30.30 (5-a).

The court makes the following findings of fact concerning appearances before the court in this case:

The defendant was arraigned on September 22, 2020, and the Public Defender was present for the sole purpose of representing the defendant at arraignment. The defendant was not remanded or in custody, but released on his recognizance. Upon completion of the arraignment, the matter was adjourned for defendant to obtain an attorney and scheduled for October 27, 2020. On October 11, 2020, a certificate of compliance was filed with the court, including the People's statement of readiness. The statement of readiness did not contain a statement certifying that all counts of the accusatory instrument met the requirements of sections 100.15 [*3]and 100.40 of the Criminal Procedure Law. (See CPL 30.30 [5-a].) On October 27, 2020, the Public Defender's Office indicated they represented the defendant and the matter was adjourned on consent until November 24, 2020. On November 24, 2020, the defendant requested the court order a preplea investigation. The defendant's request was granted and the matter was ultimately adjourned to complete the preplea investigation until February 23, 2021. On February 23, 2021, a virtual calendar conference was conducted and the matter was adjourned on consent until March 23, 2021. On March 23, 2021, the matter was adjourned on consent by email request of defendant's counsel to April 27, 2021. On April{**73 Misc 3d at 539} 27, 2021, as a result of the attorneys reporting that a resolution was not forthcoming, the court set a motion schedule requiring motions to be served by defendant on or before May 25, 2021, with opposition to be filed by June 22, 2021, and a reply, if any, by July 6, 2021, and scheduling the next appearance for July 27, 2021. On July 27, 2021, opposition to the motion was filed and on consent, the attorneys agreed to two weeks for a reply, if any, and the matter was adjourned to August 24, 2021, for decision and further appearances.

The People filed a subsequent certificate of compliance and statement of readiness on July 16, 2021, with the court. This statement of readiness indicated the People certified that the local accusatory instrument met the requirements of sections 100.15 and 100.40 of the Criminal Procedure Law.

The statement of readiness filed on October 11, 2020, did not contain the required certification. Even though this court now determined that the information is facially sufficient, the statement of readiness, without the required certification, "shall" not be valid. Criminal Procedure Law § 30.30 (5-a) states "a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter."

The People urge this court follow People v Kupferman, which allowed for a subsequent certification of a statement of readiness which would relate back to the initially filed statement of readiness. (People v Kupferman, 71 Misc 3d 1232[A], 2021 NY Slip Op 50550[U] [Sup Ct, Kings County 2021], citing People v Aviles, 72 Misc 3d 423 [Crim Ct, Kings County 2021].) These courts held certification of the statement of readiness need not occur at the time readiness is declared, but may be certified by a subsequent amendment.

This, of course, then begs the question on when the statement of readiness becomes "valid." If, as in the case before this court, the October 11, 2020 statement of readiness is not "valid," at what point in time does it become valid? Can the People cure an invalid statement of readiness nine months later, possibly after time has expired for CPL 30.30 purposes? If so, does such cure defeat the application of CPL 30.30 altogether? The holding in Aviles suggests the court has the discretion to allow a certification to relate back to the statement of readiness which did not contain the required certification. (People v Aviles, 72 Misc 3d 423 [Crim Ct, Kings County 2021].) {**73 Misc 3d at 540}

[2] This court finds that only the filing of a "valid" statement of readiness can be used when determining whether or not a defendant's right to a speedy trial has been violated. The People can cure a defective statement of readiness, but the date the defective statement is cured is the date the People have stated ready for trial. To rule otherwise would essentially remove any protections the defendant is provided by CPL 30.30 (5-a).

Accordingly, the October 11, 2020 statement of readiness is not valid for Criminal Procedure Law § 30.30 purposes and cannot be considered. However, the July 16, 2021 statement of readiness did contain the required certification and is valid. Thus, the court will consider defendant's motion based on the July 16, 2021 filing.

Using the statement of readiness filed on July 16, 2021, the court must now determine whether the People have complied with section 30.30 (1) (b) of the Criminal Procedure Law.

The court finds the "90 day time" started on September 22, 2020, at arraignment. Even though the Public Defender represented the defendant at the arraignment, the appearance was limited for the sole purpose of representation at arraignment. Accordingly, the time from September 22, 2020, to October 27, 2020, is not chargeable to the People, since the defendant was without counsel. (See CPL 30.30 [4] [f].) At the next scheduled appearance on October 27, 2020, the matter was adjourned on consent of the defendant to November 24, 2020. This time is also not chargeable to the People. (See CPL 30.30 [4] [b].) On November 24, 2020, the defendant requested a preplea investigation report. The case was initially adjourned to January 26, 2021, for the probation department to complete that report. However, on December 14, 2020, the probation department notified the court that additional time was required to complete the report and the matter was thereafter adjourned to February 23, 2021. On February 17, 2021, the preplea investigation was available and provided to defense counsel. Because the defendant requested the preplea investigation report, the court determines the People are not chargeable with the time from November 24, 2020, to February 23, 2021. (See CPL 30.30 [4] [b].) On February 23, 2021, a virtual conference was conducted and the matter was adjourned on consent to March 23, 2021. On March 23, 2021, the matter was again adjourned on consent to April 27, 2021. Therefore, the time from February 23, 2021, to April 27, 2021, is not chargeable to{**73 Misc 3d at 541} the People. (See CPL 30.30 [4] [b].) Finally, on April 27, 2021, a motion schedule was set by the court, resulting in the defendant's instant application. Thereafter, on July 16, 2021, a valid statement of readiness was filed by the People.

Based on the court's findings, the motion to dismiss for violation of the defendant's speedy trial rights is denied. The People have stated ready for trial within the time limits of Criminal Procedure Law § 30.30 (1) (b).

At this time the court will deny the defendant's right to file an additional motion seeking suppression of any physical evidence which would be subject to suppression. The court will entertain such motion only if good cause is shown and upon a demonstration that reasonable grounds for delay in making any such motion is established.

This court will grant the defendant a Huntley hearing for the purpose of determining whether or not any statements attributed to him were taken involuntarily or were obtained in violation of his rights under the United States and New York State Constitutions, including his constitutional right to counsel. Such a hearing will be scheduled before the court as soon as practical.

The People have acknowledged their obligation to disclose, prior to trial, any evidence in the People's possession which would be exculpatory, or tend to be exculpatory information. The [*5]People accordingly are directed to comply with the obligations under Brady v Maryland to the extent that such discoverable information exists.

The defendant's request for a Sandoval hearing is granted. Such a hearing may be conducted immediately prior to jury selection for the purpose of considering issues encompassed in the authority of People v Sandoval. Prior to such hearing, the People will provide the defendant with notice concerning what, if any, criminal record the defendant may have and what, if any, specific instances of the defendant's prior uncharged, criminal,{**73 Misc 3d at 542} vicious or immoral conduct of which the prosecutor has knowledge and of which the prosecutor intends to use at the trial for the purpose of impeaching the defendant's credibility.

Lastly, the defendant is denied leave to file additional motions. The court will entertain motions only upon good cause shown and upon a demonstration that reasonable grounds for delay in making additional motions is established.