Opinion
No. 2013KN051160.
04-08-2015
PEOPLE of the State of New York, Plaintiff, v. Benjamin ORTIZ, Defendant.
District Attorney, Kings County, by ADA Daniel Costello, for the People. The Legal Aid Society by Robert Heilbrun, for the Defendant.
District Attorney, Kings County, by ADA Daniel Costello, for the People.
The Legal Aid Society by Robert Heilbrun, for the Defendant.
Opinion
LAURA R. JOHNSON, J.
Defendant is charged with a single count of Criminal Possession of a Controlled Substance in the 7th degree (Penal Law § 220.03 ), a Class A misdemeanor. By Notice of Motion filed December 8, 2014, defendant moves to dismiss the accusatory instrument in this case on the ground that the People have exceeded the statutory speedy trial time (CPL § 30.30[1][b] ). The People opposed defendant's motion by affirmation dated January 2, 2015. On January 30, 2015, with the Court's permission, defendant submitted a reply in further support of his motion. For the following reasons, defendant's motion to dismiss is denied.
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 class 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 serving and filing an off-calendar Certificate of Readiness, or as it is called in Kings County, a Statement of Readiness (CPL § 30.30[1][b] ; People v. Stirrup, 91 N.Y.2d 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 N.Y.2d 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 N.Y.2d at 502 ; People v. Khachiyan, 194 Misc.2d 161 [Crim Ct, Kings County 2002] ). 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 N.Y.2d 859 [1986] ; People v. Berkowitz, 50 N.Y.2d 333, 349 [1980] ).
Defendant's initial motion contained only the general allegation that, since the arraignment on July 5, 2013, more than 90 days of chargeable time has passed. While the People did not challenge the sufficiency of the initial motion, it was not until defendant's reply that he clearly presented the basis for his motion.
Before embarking on calculations as to the chargeable or excludable nature of particular adjournments in this case, it is necessary to first address the defendant's contention that all statements of readiness made by the People were illusory, prior to the People serving and filing a laboratory report on October 10, 2014. Relying on two decisions from a court of parallel jurisdiction, People v. Colon, 42 Misc.3d 1128(A) (Crim Ct, Bronx County 2014) and People v. Beckett, 44 Misc.3d 560 (Crim Ct, Bronx County 2014), the defendant urges this Court to find that all elapsed time between arraignment and the date of filing of the laboratory report is chargeable to the People. However, the Court disagrees with this contention.
Because the defendant has not attached the laboratory report that is the crux of his motion, the Court must question whether the laboratory report would justify the defendant's reliance on case law that clearly highlights as critical not the date on which the report was served and filed but rather the date that the laboratory test was performed ( People v. Colon, 42 Misc.3d 1128[A] [Crim Ct, Bronx County 2014] ).
For a statement of readiness to be genuine, the People must have removed all legal impediments to the commencement of trial and be ready to proceed with trial at the moment the statement is made. In other words, the People are ready to proceed when they “done all that is required of them to bring the case to a point where it may be tried.” People v. England, 84 N.Y.2d 1, 4 (1994), citing People v. McKenna, 76 N.Y.2d 59, 64–65 (1990). In this case, the People will be required to prove at trial that the substance alleged to be crack cocaine is in fact a controlled substance covered under PL § 220.03. The People have legally sufficient evidence to answer ready and proceed to trial when they have the testimony of the arresting officer and positive field test results (People v. Van Hoesen, 12 AD3d 5, 8–9 [3d Dep't 2004] ). Even in People v. Colon, upon which defendant relies, the court found the People's statement of readiness to be illusory where it included a supporting deposition “but not a lab or field test” (Colon, 42 Misc.3d at 2). The implication of this decision is that either a laboratory or a field test will suffice to support a statement of readiness. Here, a field test was performed on July 4, 2013 and its positive results were referenced in the complaint, supporting the People's statement of readiness at arraignment. The People filed that field test report as part of DBS on July 10, 2013. Irrespective of whether or not they could have prevailed before a jury without a laboratory report, the People's possession of field test results was legally sufficient for them to have declared ready for trial. Therefore, although the lab report was not produced to the defense until October 10, 2014, that does not mean that the People's statements of readiness at arraignment on July 5, 2013 and all statements of readiness thereafter were illusory.
Time Calculations
With the above conclusion in mind, the court will now determine what time is chargeable to the People in this case.
July 5, 2013 to July 10, 2013—Arraignment to Discovery by Stipulation[0 days charged]
The counting of chargeable time begins upon the commencement of the action, which in this case was the defendant's arraignment on July 5, 2013, with that day itself being excluded under the General Construction Law (People v. Stiles, 70 N.Y.2d 765 [1987] ). At arraignment, the People announced ready for trial on the first party information, which required no lab report for conversion (People v.. Kalin, 12 NY3d 225 [2009] ). The People stated on the record at arraignment that they were ready for trial.
The case was adjourned until July 10, 2013 for Discovery By Stipulation (DBS). In Kings County, pursuant to a stipulation with the defense bar, the District Attorney's Office routinely grants open file discovery, making it unnecessary for the defense to make formal motions. Instead, the periods of adjournment for DBS 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] ). Therefore, this adjournment is excludable.
The People are charged 0 days.
July 10, 2013 to October 8, 2013—DBS to Adjournment for Hearing and Trial [0 days charged]
On July 10, 2013, the People served and filed DBS, and the case was then adjourned for hearings and trial. The court action sheet does not indicate whether the People answered ready on July 10, 2013. The People are entitled to a reasonable amount of time to prepare for hearings and trial after they are ordered (People v. Green, 90 A.D.2d 705 [1st Dept 1982] ; see also People v. Forbes, 7 AD3d 473, 474 [1st Dept 2004] ). Furthermore, there was no expectation that the People would start trial on July 10, 2013 because the case was before a judge for the first time after arraignment, and had been adjourned for DBS. In the absence of any record indication that the court had directed them to start trial on July 10, there is no reason to question the People's ongoing state of readiness, which continued on the next adjournment date. Nor was the adjournment that followed one that was “attributable to their inaction and directly implicate[d] their ability to proceed with trial” (People v. Nielsen, 306 A.D.2d 500, 501 [2d Dept.2003] ). The case was adjourned to October 8, 2013 for hearing and trial in AP–3. The adjournment is excludable.
The excludability of this adjournment is not changed by the fact that the case was advanced on July 30, 2013 so that the People could make an offer of disposition in this and another case against the defendant. There was no disposition, and the case was returned to the original adjournment of October 8, 2013 for hearing and trial.
Defendant's other open case, 2013KN041287, was also adjourned to October 8, 2013, so that the two cases could follow the same schedule. Defendant has also moved to dismiss that case on speedy trial grounds, a motion that is separately decided by this Court.
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The People are charged 0 days.
October 8, 2013–December 16, 2013—Adjournment for Hearings and Trial[0 days charged]
On October 8, 2013, the People announced ready for trial. Defense counsel was not ready, however. The case was adjourned to December 16, 2013 for hearing and trial. Delay occasioned by the defense is not chargeable to the People (CPL § 30.30[4][b] ).
The people are charged 0 days.
December 16, 2013–February 5, 2014—Adjournment for Hearings and Trial[7 days charged]
On December 16, 2013, the People were not ready and requested a 7–day adjournment. The case was adjourned to February 5, 2014 for hearing and trial. The People are charged for post-readiness adjournments only when the delay is solely and exclusively the fault of the People and the time cannot otherwise be excluded under CPL 30 .30(4) (People v. Cortes, 80 N.Y.2d 201, 210 [1992] ; People v. Anderson, 66 N.Y.2d 529, 535–36 [1985] ). Therefore, after they have announced ready for trial, the People are charged only with the amount of time that they specifically request on the record (People v. Nielsen, 306 A.D.2d at 501 ).
The People are charged 7 days.
February 5, 2014 to March 27, 2014—Adjournment for Hearings and Trial [0 days charged; total days charged: 7]
On February 5, 2014, the People announced that they were ready. Nevertheless, for reasons not clear from the record or explained by either party, the case was adjourned to March 27, 2014 for hearings and trial.
The People's in-court statement of readiness is sufficient to carry their burden of proof as to this adjournment (People v. Cortes, 80 N.Y.2d 201, 215–16 [1992] ; People v. Anderson, 66 N.Y.2d 529, 541 [1981] ).
The People are charged 0 days.
March 27, 2014 to April 28, 2014—Adjournment for Hearings and Trial [18 days charged; total days charged: 25]
On March 27, 2014, the People announced that they were not ready for trial because the case had been reassigned to a new ADA. The People requested an 18–day adjournment, until April 15, 2014. The case was adjourned to April 28, 2014 for hearings and trial.
The People are charged 18 days (People v. Nielsen, 306 A.D.2d at 501 ).
April 28, 2014—June 24, 2014—Adjournment for Hearings and Trial [0 days charged; total days charged: 25]
On April 28, 2014, the People were ready for trial. The case was nevertheless adjourned to June 24, 2014 for hearing and trial.
The People are charged 0 days.
June 24, 2014–September 15, 2014—Adjournment for Hearings and Trial [0 days charged; total days charged: 25]
On June 24, 2015, the People served and filed additional DBS and again announced ready for trial. The case was nevertheless adjourned to September 15, 2014 for hearing and trial.
The People are charged 0 days.
September 15, 2014 to October 14, 2014—Adjournment for Hearings and Trial [11 days charged; total days charged: 36]
On September 15, 2014, the People were not ready for trial and requested 11 days because the assigned ADA was on trial. The case was adjourned to October 14, 2014 for hearings and trial.
The People are charged 11 days (People v. Nielsen, 306 A.D.2d at 501 ).
October 14, 2014—December 9, 2014—Adjournment for Hearings and Trial [0 days charged; total days charged: 36]
On October 14, 2014, the People served and filed additional DBS, including a laboratory report, and again announced ready for trial. It is the service of this laboratory report that the defendant claims makes all prior statements of readiness illusory, an argument that the Court addresses and rejects above. Once again, for reasons not stated in the record or explained by either party, the case was adjourned to December 9, 2014 for hearing and trial.
The People are charged 0 days.
December 8, 2014–Motion Practice [0 days charged; total days charged: 36]
On December 8, 2014, the defense served and filed the motion now before the Court. Motion practice stops the speedy trial clock. CPL § 30.30(4)(a).
The People are charged 0 days.
CONCLUSION
The People are charged 36 days in total. Accordingly, defendant's motion is DENIED.
This constitutes the Decision and Order of the Court.