Opinion
2001NY028209.
Decided January 9, 2004.
The court granted defendant's motion to dismiss the complaint for lack of speedy trial. The People now move to reargue, contending that the dismissal was not supported by controlling legal authority.
The decision which the People ask the court to reconsider turned on the court's determination that the People must be charged with the entire period of an adjournment specifically requested by them notwithstanding that, after requesting the adjournment, the People filed another certificate of readiness. The People argue that the off-calendar serving of that certificate of readiness tolled the chargeable time. The court held that the People are chargeable with the number of days actually requested, the normal rule in post-readiness cases, and that their filing of an intervening certificate of readiness does not serve to stop the running of the chargeable period. It is noteworthy that the People did not advance the case for trial; rather they appear to have been content with the date actually requested. Under the circumstances, it is apparent that the filing of the certificate was merely a procedural device by which the People attempted to stop the clock.
In support of their motion to reargue, the People rely on People v. Douglas, 264 AD2d 671 (1st Dept. 1999). Although the opinion in that case makes no mention of the rule argued for by the People, that the People should not be charged for the entire period requested by them when they file an intervening certificate of readiness, the People argue that the Douglas case must be so interpreted when the underlying facts are reviewed.
Specifically, the People contend that in Douglas there were two occasions when the adjournments requested by them were not fully charged because of the filing of certificates of readiness. The People attach to their moving papers the brief submitted by them to the Appellate Division in Douglas. That brief refers, among other dates, to August 2, 1994 when the case was adjourned to September 6, 1994. A certificate of readiness was filed by the People on August 3. Although the Appellate Division found only one day to be chargeable, that finding does not establish the rule argued for here by the People for the following reasons. In their brief in Douglas the People argued that:
the issue had not been preserved by defendant; the People were actually ready on each of August 2 and September 6 notwithstanding defendant's argument to the contrary; the People did not request September 6 but "simply suggested [it] as the next `good date'"; the defendant's contention that the filing of the certificate was a sham was without merit. A second period highlighted by the People's brief in Douglas, was January 25, 1995 through February 8, 1995. On January 25 the People were not ready and requested a two-week adjournment. The case was adjourned to February 8. The People filed a certificate of readiness on January 27. In the court below, the People were charged with only two days. This ruling was upheld by the Appellate Division in Douglas.
A review of the People's brief in Douglas discloses that they advanced the following arguments. In the court below the defendant argued that the People should be charged because the certificate of readiness was illusory in that the People were not actually ready when the prosecutor filed the certificate. In their Douglas brief the People further argued that the defendant "did not claim, as he now does, that the People could not stop the clock by filing a certificate of readiness in good faith, but sooner than the adjourn date they requested. Accordingly, the court simply found that the certificate of readiness was made in good faith . . ., and never addressed the question the defendant now raises.
Thus, defendant's appellate claim is unpreserved, . . . and, regardless of the merits of defendant's assertion, this 12-day period should be excluded." (emphasis added).
From the foregoing, it is evident that the Appellate Division in Douglas did not focus on the issue presented here and, understandably, in its opinion, made no statement that the People may shorten the period actually requested by them by the filing of an intervening certificate of readiness. The Douglas decision simply does not stand for that proposition.
On the other hand, the cases cited by this court, in its initial opinion which granted defendant's speedy trial motion, explicitly addressed, or focused on, the issue of whether the People may be charged with less that the time requested by them when they file an intervening certificate of readiness. Thus, in People v. Bissereth, 194 AD2d 317 (1st Dept.), lv. den., 82 NY2d 714 (1993), the court held that the People are chargeable with the full period of the adjournment granted at their behest, notwithstanding an intervening declaration of readiness.
That case may not be ignored simply because the People say, in conclusory fashion, that it is distinguishable or that its application to this case would represent "poor policy". Nor does the holding in People v. Stirrup, 91 NY2d 434 (1998), effectively reject the court's holding in Bissereth.
In People v. Anderson, 252 AD2d 399 (1st Dept. 1998), it is clear from the court's opinion that the People's post-readiness filing of a certificate of readiness did not stop the clock on the date filed. Instead, the People were charged with the time actually requested by them. That ruling was made with a full awareness of Stirrup, which was cited in the opinion.
Accordingly, the People's motion to vacate this court's decision and order of October 23, 2003, upon reargument, is denied and the court's decision and order of October 23, 2003, dismissing the complaint, is adhered to.
This opinion constitutes the decision and order of the court.