Opinion
No. 2014KN018164.
04-16-2015
The PEOPLE of the State of New York, v. Tneka RIOS, Defendant.
District Attorney, Kings County by ADA Diana John, for People. The Legal Aid Society by Niamh O'Flaherty, for Defendant.
District Attorney, Kings County by ADA Diana John, for People.
The Legal Aid Society by Niamh O'Flaherty, for Defendant.
Opinion
LAURA R. JOHNSON, J.
Defendant is charged under Docket No. 2014KN018164 (hereinafter “Action # 1”), with Stalking in the 3rd degree (Penal Law § 120.50[3] ) and other related charges. For violating the order of protection issued in Action # 1, defendant is charged under Docket No. 2014KN047015 (hereinafter “Action # 2), with Criminal Contempt in the 2nd degree (Penal Law § 215.50 [3 ] ) and another related charge. Penal Law § 120.50(3) and Penal Law § 215.50(3) are both Class A misdemeanors.
By separate Notices of Motion, filed in court on March 13, 2015, defendant moves to dismiss each of the accusatory instruments in these two open cases on the ground that the People have exceeded the statutory speedy trial time (CPL 30.30[1][b] ). The People have opposed defendant's motions in separate affirmations dated April 6, 2015.
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 (id., at 502 ; People v. Khachiyan, 194 Misc.2d 161 [Crim Ct, Kings County 2002] ). Here, the defendant has alleged a delay of at least 198 days in Action # 1 and 101 days in Action # 2. 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] ).
As to both dockets, the parties are in agreement that the People are to be charged with the time from arraignment to conversion of the complaint. In each docket, the People converted the complaint to an information by serving and filing, off calendar, a supporting deposition of the complainant, in each case accompanied by a written Statement of Readiness. The parties further agree that the adjournment for the People to provide Discovery by Stipulation (DBS) is excludable as equivalent to motion practice. And, although she does not state this explicitly, defendant appears to agree that, ordinarily, the People are also not to be charged for the adjournment from production of DBS until the case is first placed on the calendar for hearing and trial.
Where the parties diverge is in their interpretation of the significance of the People's failure to be ready on the particular dates that the cases were on the court's calendar for hearings and trial. Defendant maintains that any subsequent failure to be ready is indication that the initial statements of readiness—both written and in-court—were illusory, and that the People should be charged retrospectively with all adjournments other than those attributable to motion practice or its equivalent. The People contend that, after their initial statement of readiness, they should be charged only with the adjournments they specifically requested. In the following chronology, the Court examines the particular reasons for the People's failure to be ready, to determine which of these contentions is applicable to the facts of these cases.
Defendant was arraigned on Action # 1 on March 14, 2014, and the matter was placed on the AP5 calendar, where it has remained. Defendant was arraigned on Action # 2 on June 24, 2014, and was immediately placed on the same calendar schedule as Action # 1, with the cases called together in AP5 beginning on August 5, 2014. By the next calendar date, October 7, 2014, the two cases were in the same trial posture. Therefore, while the Court has performed separate speedy trial computations for each action, the discussion is consolidated here to avoid redundancy.
March 14, 2014 to May 6, 2014—Action # 1: Arraignment to Conversion [13 days charged; subtotal: 13 days]
Defendant was arraigned on March 14, 2014 and the case was adjourned to May 6, 2014 for conversion. The People converted the complaint prior to the adjournment date by serving and filing on March 27, 2014, off calendar, the supporting deposition of the complaining witness, L.W. Simultaneously, the People served and filed a written Statement of Readiness (SOR).
The parties agree, and the Court finds, that the People are charged 13 days.
May 6, 2014 to June 11, 2014—Action # 1: Adjournment for Discovery by Stipulation [0 days charged; subtotal: 13 days]
On May 6, 2014, the People announced ready for trial (reaffirming the earlier written SOR). The case was adjourned to June 11, 2014 for Discovery by Stipulation (DBS). In Kings County, this period is excludable as the equivalent of pre-trial motions under CPL 30.30(4)(a) (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, the parties agree, and the Court finds, that this adjournment is excludable.
The People are charged 0 days.
June 11, 2014 to August 5, 2014—Action # 1: Adjournment after DBS in for Hearings and Trial [0 days charged; subtotal: 13 days]
On June 11, 2014, the People served and filed timely DBS. The court action sheet and the parties' submissions are silent as to whether the People answered ready on June 11, 2014. The case was adjourned to August 5, 2014 for hearings and trial. Ordinarily, 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] ). The People were not expected to commence trial on June 11, and therefore it is not dispositive or even surprising that they did not reaffirm their prior statements of readiness on that date. This period is excludable.
The People are charged 0 days.
June 24, 2014 to August 5, 2014—Action # 2: Arraignment on to Conversion [15 days charged; subtotal: 15 days]
On June 24, 2014, defendant was arraigned in Action # 2 on a charge of violating the temporary order of protection issued in Action # 1. The case was adjourned to August 5, 2014 for conversion (and to join Action # 1).
On July 9, 2014, the complaint in Action # 2 was converted to an information when the People served and filed off calendar the supporting deposition of the same complaining witness, L.W., dated July 8, 2014, accompanied by the People's SOR.
The parties agree, and the court finds, that the People are charged 15 days on Action # 2.
August 5, 2014 to October 7, 2014
Action # 1: Further Adjournment for Hearings and Trial [14 days charged; subtotal: 27 days]
Action # 2: Adjournment for off-calendar DBS and for Hearings and Trial [0 days charged; subtotal: 15 days]
On August 5, 2014, the People indicated that they were not ready for trial on Action # 1 because the complaining witness was unavailable, and requested an adjournment of 14 days. Defendant contends that this statement of unreadiness “invalidated [the] prior assertion of readiness, in the absence of a legally sufficient explanation” (Deft Aff Action # 1 ¶ 6), and that the People should therefore be charged retrospectively with all the time after DBS was served in Action # 1, including even the adjournment after DBS, since the People could not demonstrate that they were ready on June 11. The Court rejects this contention. The People were clearly in contact with the complaining witness, and had obtained from her in July a supporting deposition regarding Action # 2. There is no reason to question their representation that the complainant was not available for 14 days during the summer. That post-readiness delay, while chargeable as such (People v. Cortes, 80 N.Y.2d 201, 210 [1992] ; People v. Nielsen, 306 A.D.2d 500, 501 [2d Dept 2003] ), does not invalidate the People's prior statements of readiness. The case was adjourned to October 7, 2014 for hearings and trial. The People are charged 14 days on Action # 1.
As for Action # 2, that case was on the calendar for conversion. Conversion having occurred off calendar, the case was adjourned to October 7, 2014, the same date as Action # 1, also for hearings and trial, with the People to serve and file DBS in Action # 2 off-calendar in the interim, by Friday, September 19, 2014. DBS was actually served and filed on Monday, September 22, 2014. Discovery is not prerequisite to the People's readiness for trial (People v. Caussade, 162 A.D.2d 4, 8 [2d Dept] app denied 76 N.Y.2d 984 [1990] ), and this delay of one business day is de minimus, particularly in the context of an otherwise excludable adjournment (People v. Dorilas, 19 Misc.3d at 76–77 ; People v. Green, 90 A.D.2d at 705–906 ). The People are charged 0 days on Action # 2.
October 7, 2014 to November 20, 2014—Adjournment of both Actions for Hearings and Trial[8 days requested; 44 day adjournment; Action # 1: subtotal 27 days]
[8 days requested; 44 day adjournment; Action # 2: subtotal 15 days]
On October 7, 2014, the People answered “not ready” and requested 8 days because a new Assistant District Attorney (ADA) was assigned to the case. The cases were adjourned to November 20, 2014 for hearings and trial.
The reassignment of the case to a new ADA creates no legal impediment to the trial of the case, and therefore does not invalidate prior statements of readiness (People v. England, 84 N.Y.2d 1, 4 [1994] ). It does, however, create a practical impediment to the commencement of trial, making an adjournment for that reason a clear example of a post-readiness adjournment that is solely and exclusively the fault of the People and for which 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] ). The People's request for eight days for the new ADA to prepare the trial was not unreasonable, and at the time the adjournment was set, the additional period of adjournment was attributable to the court's schedule, and would ordinarily not be chargeable to the People (People v. Nielsen, 306 A.D.2d at 501 ).
It is here, however, that the People's failure to be ready for trial at the next two adjournments becomes critical. The stated reasons for those subsequent statements of unreadiness will be considered in due course; for now, it is noted that the adjournment from October 7 to November 20 is 44 days, of which either 8 or all will ultimately be charged to the People.
November 20, 2014 to December 2, 2014—Adjournment of both Actions for Hearings and Trial [12 days charged; 8 or 44 days in abeyance; Action # 1: subtotal: 39 days]
[12 days charged; 8 or 44 days in abeyance; Action # 2: subtotal 27 days]
On November 20, 2014, the People answered “not ready.” Although no reason for this adjournment request is specified in the court action sheets, both defendant and the People state in their papers that the People requested a 12 day adjournment because they needed “more” or “additional” “time to prepare” (Deft Aff. Action # 1 at ¶ 5e; Deft Aff Action # 2 at ¶ 5d; P's Resp Action # 1 at ¶ 11; P's Resp Action # 2 at ¶ 9). This vague justification clearly raised a question in the mind of the judge presiding on November 20, who adjourned the case to December 2, 2014, for hearings and trial, exactly the 12 days requested by the People.
Defendant's motions mistakenly indicate that the People requested a 13–day adjournment (Deft Aff Action # 1 at ¶ 5e; Deft Aff Action # 2 at ¶ 5d).
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The parties agree, and the Court finds, that this full adjournment of 12 days is charged to the People.
Defendant argues that, because the People were not ready on November 20, the entire period of the previous adjournment should be charged to the People. By adjourning the cases for the exact period requested by the People, the court was testing the People's ability to be ready for trial in the limited time they requested. For the reasons stated above, the period of the prior adjournment remains in abeyance.
December 2, 2014 to January 27, 2015—Adjournment of Both Actions for Hearings and Trial [10 days charged; 44 days charged retrospectively; Action # 1: 93 days total]
[10 days charged; 44 days charged retrospectively; Action # 2: 81 days total]
On December 2, 2014, the People answered “not ready” and requested a 10 day adjournment, once again stating that the assigned ADA needed “additional time to prepare” (P's Resp Action # 1 at ¶ 11; P's Resp Action # 2 at ¶ 10). In light of the fact that the People had made an identical request for a relatively brief adjournment at the prior appearance, and then were not ready upon the date they had requested, the Court adjourned the cases to January 27, 2015 for hearings and trial and directed that the People would be charged until they served and filed a new Statement of Readiness.
On December 12, 2014, the People served and filed, off-calendar, an SOR as to each of Actions # 1 and # 2. For the period from December 2, 2014 to December 12, 2014, the People are charged 10 days.
It is now time to address whether the People's prior statements of readiness had been illusory. As discussed above, the Court credits the People's representations that they were ready for trial subject only to the need for a short adjournment up until October 7, 2014, and will not look back any farther than that (People v. Caussade, 162 A.D.2d at 18 ; see also People v. Rodriguez, 2002 Slip Op. 50035[U], [Crim. Ct., Kings County 2002] [Allman, J.] ). However, the Court finds that the People's statements—in court and in their response to defendant's motions—that on November 20 and December 2 they needed “additional time to prepare” demonstrate that their October 7 statement that the ADA to whom the case had been transferred could be ready for trial in 8 days was an illusory expectation of future readiness (People v. Sibblies, 22 NY3d 1174 [2014] ; People v. Nunez, 47 AD3d 545, 546 [1st Dept.2008] ; People v. Jackson, 46 Misc.3d 1214[A] [Crim. Ct., Kings County 2015] [Hecht, J.] ). Therefore, the People are not to be charged only with the 8 days that they requested on October 7, 2014, but with the entire 44 days of that adjournment.
Remaining Adjournments—Action # 1 and Action # 2
While neither party addresses subsequent adjournments, the Court finds that the periods for the remaining adjournments are excludable as follows:
January 27, 2015 to March 13, 2015—Administrative Adjournment Due to Snow Storm
On January 27, 2015, the courthouse was closed due to a snow storm. All matters were administratively adjourned to March 13, 2015. Post-readiness delay, attributed to the court and, in this instance, specifically to the exceptional circumstances of inclement weather, is not chargeable to the People (see People v. Martucci, 22 Misc.3d 137[A] [Appellate Term, New York, 9th and 10th Judicial Districts [2009]; People v. Fagan, 260 A.D.2d 219 [1st Dept 1999] ).
March 13, 2015 to April 16, 2015—Motion Practice
On March 13, 2015, the defendant served and filed, in court, the speedy trial motions now before the Court. The date of January 26, 2015 on the motion papers indicates that defendant had intended to file her motions at the prior date, when the case was administratively adjourned. The Court set a motion schedule and adjourned the cases to April 16, 2015 for decision.
Motion practice stops the speedy trial clock (CPL 30.30[4][a] ).
RESERVATION OF RIGHTS
Those branches of defendant's motions seeking the right to make further motions are granted to the extent provided for by CPL 255.20(3).
CONCLUSION
In Action # 1, the People are charged 93 days. Accordingly, defendant's motion as to Docket # 2014KN018164 is GRANTED. Sealing of the file is stayed for 30 days.
In Action # 2, the People are charged 81 days. Accordingly, defendant's motion as to Docket # 2014KN047015 is DENIED.
This constitutes the Decision and Order of the Court.