Opinion
19939/05.
Decided July 6, 2009.
Christine J. Kubic, A.D.A. of counsel to Kathleen M. Rice, District Attorney, Attorney for the Plaintiff, Nassau County District Court, Hempstead, NY.
Larry E. Flowers, Esq., Law Offices of Christopher J. Cassar, P.C., Attorney for the Defendant, New York.
The defendant is charged with violating VTL § 1192.4 (driving while ability impaired by drugs) stemming from an incident which allegedly occurred on September 21, 2005.
A hearing on June 5, 2009 was held concerning whether or not the time period from March 3, 2008 through March 17, 2008 was chargeable to the People. After hearing, Defendant's motion for an order, pursuant to CPL § 30.30, dismissing the action upon the ground that her right to a speedy trial has been violated is granted for the following reasons.
So as to have full understanding of the relevant time period, a review of the Court file and relevant transcripts indicates that a mistrial was granted on February 14, 2008 by the Hon Norman St. George and that the matter was set down for trial on March 3, 2008. After declaring a mistrial, Judge St. George set a new trial date of March 3, 2008, and at the same time requested that both the People and Defense submit Memorandum concerning whether or not the mistrial would be with or without prejudice. Judge St. George was clear on the record that both sides should be prepared for trial on March 3, 2008. There were no objections to preceding to trial on March 3, 2008 by either the People or the Defendant. On March 3, 2008 the trial Court ruled that the mistrial would be without prejudice and a new trial would commence. However, the People stated they were not ready for trial due to unavailability of two of their twelve witnesses and would not be ready until March 17, 2008.
For the first time at the hearing on June 5, 2009 the People argued that, despite Judge St. Georges directive, they had no obligation to be ready for trial on March 3, 2008. The people now submit that they believed the Courts request for submissions of Memorandum on the issue of whether the mistrial would be with or without prejudice constituted motion practice and therefore, the period of time from March 3, 2008 through March 17, 2008 should not be chargeable as the people would have been entitled to a reasonable amount of time to prepare for trial after a decision on motion by the Court. (Peoples Affirmation ¶ "14".)
At the conclusion of the hearing on June 5, 2009, the Court allowed both sides to submit memorandum on the limited issue of whether or not the trial Courts request for Memorandum on a limited trial issue was synonymous with motion practice. Unfortunately, neither submission was very helpful. The Peoples submissions were void of any case law or statute in support of their position, instead relying upon disingenuous interpretations of language of the Hon. Norman St. George and this Court.
Turning to the People's argument, the Peoples submission to the Court neither reference nor contain any reliance on statute or case law in support of their argument that they would have been entitled to a reasonable period of time to prepare for trial after Judge St. George finalized his decision of a mistrial without prejudice. Relying upon the language used by the People in their submission, the Court can only assume the People rest their argument on CPL § 30.30(1)(a), which states in pertinent part:
"In computing the time within which the people must be ready for trial pursuant to subdivisions one and two, the following periods must be excluded:
1(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: proceedings for the determination of competency and the period during which defendant is incompetent to stand trial; demand to produce; request for a bill of particulars; pre-trial motions; appeals; trial of other charges; and the period during which such matters are under consideration by the court . . ."
The people proffer that their reliance upon the trial Court's interchanging of words such as "Memorandum" and "Motion" entitled them to a reasonable time to prepare for trial. The People further argue that this Court also uses the terms interchangeably and therefor, their reliance upon the belief they would be entitled to a reasonable period of time to prepare for trial was correct. (Peoples Affirmation ¶ 15). The argument that this Court was using the terms at issue interchangeably is disingenuous at best. The Assistant District Attorney at the hearing clearly understood that the Courts statement "submit the memorandums aka motions" was nothing more then the Court referencing the issue at dispute.
The Peoples reliance on CPL § 30.30(1)(a) and their further argument that the terminology used by the Court "is a novel issue and a case of first impression with regard to clarifying the distinctions, if any does exist, of these terms" is misplaced. (See Peoples Affirmation ¶ (17). The peoples argument is misplaced as it is the posture of the case which is controlling in the instant matter, not the terminology used by the Court. CPL § 30.30(5)(a) states:
"For purposes of this section, (a) where the defendant is to be tried following the withdrawal of the plea of guilty or is to be retried following a mistrial, an order for a new trial or an appeal or collateral attack, the criminal action and the commitment to the custody of the sheriff, if any, must be deemed to have commenced on the date the withdrawal of the plea of guilty or the date the order occasioning a retrial becomes final;"
Pursuant to CPL § 30.30(5)(a), after a mistrial is declared, chargeable time starts to run a new for purposes of speedy trial limitations and the People must announce their readiness for trial within the statutorily prescribed period that commenced when the order for a new trial became final.( People v. Wilson, 86 NY2d 753, 754, 631 NYS2d 127, 655 NE2d 168; People v. Weaver, 162 AD2d 486, 487, 556 NYS2d 173 [2d Dept. 1990], lv. denied 76 NY2d 868, 560 NYS2d 1007, 561 NE2d 907; People v. Holmes, 105 AD2d 803, 481 NYS2d 741 [2d Dept. 1984], lv. denied 64 NY2d 760; People v. Gaggi, 104 AD2d 422, 478 NYS2d 732 [2d Dept. 1984], app. dismissed 65 NY2d 636, 491 NYS2d 159, 480 NE2d 748; People v. Contrearas, 227 AD2d 907, 227 AD2d 907 [4th Dept. 1996]; People v. Rice, 224 AD2d 971, 637 NYS2d 847 [4th Dept. 1996], lv. denied 88 NY2d 883, 645 NYS2d 458, 668 NE2d 429; People v. Passero, 96 AD2d 721, 465 NYS2d 360 [4th Dept. 1983]; People v. Tamulewicz, 88 AD2d 698, 451 NYS2d 328 [3rd Dept. 1982]).
At the beginning of the hearing on June 5, 2009 there was no dispute that the chargeable time to the people was 78 days and that the only period in dispute was from March 3, 2009 through March 17, 2008. As the mistrial became final on March 3, 2008, that is the date from which any time chargeable to the people would begin anew.
The Peoples failure to be ready for trial or in the alternative provide this Court with a reasonable excuse for their non-readiness leaves the Court with no choice but to charge the people with the period of time from March 3, 2008 through March 17, 2008.
According to CPL § 30.30(1)(b), the People need to be ready for trial in this case within ninety (90) days of the commencement of the action where the defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months, as is the case in this action. As the People are now charged with non-excusable time in excess of 90 days, the instant matter is dismissed.
This constitutes the decision and order of the Court.