Opinion
No. 2012KN002081.
2012-09-10
The PEOPLE of the State of New York, v. Veronica TELEMAQUE, Defendant.
Charles J. Hynes, District Attorney, Kings County, by Seth M. Lieberman, Esq., Assistant District Attorney, for the People. Donald Vogelman, Esq., for the Defendant.
Charles J. Hynes, District Attorney, Kings County, by Seth M. Lieberman, Esq., Assistant District Attorney, for the People. Donald Vogelman, Esq., for the Defendant.
JOHN H. WILSON, J.
Defendant was charged with two counts of Aggravated Harassment in the Second Degree (PL Sec. 240.30), both Class A misdemeanors, and one count of Harassment in the Second Degree (PL Sec. 240.36), a violation.
By motion dated June 13, 2012, the People seek to reargue and renew the dismissal of the Criminal Court Complaint pursuant to CPL Sec. 30.30, asserting that the Court erred in dismissing this matter pursuant to that section.
The Court has reviewed the Court file, the People's motion, Defendant's Response dated July 31, 2012, and the People's Reply dated August 7, 2012.
The People's motion is denied. The Court finds that this matter was properly dismissed pursuant to CPL Sec. 30.30.
The top counts of the Criminal Court Complaint herein are Class A misdemeanors. Thus, there is no dispute that 90 days is the applicable time limit. See, CPL Sec. 30.30(1)(b); People v. Cooper, 98 N.Y.2d 541, 543, 750 N.Y.S.2d 258, 779 N.E.2d 1006 (2002) (“CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action.”).
Defendant was arrested in the instant matter on January 8, 2012, and arraigned on the next day. Defendant was released in her own recognizance, and this matter was adjourned for conversion of the Criminal Court Complaint to March 19, 2012. Excluding the day of arraignment from our calculations (See, People v. Stiles, 70 N.Y.2d 765, 520 N.Y.S.2d 745, 514 N.E.2d 1368 (1987); People v. Eckert, 117 Misc.2d 504, 458 N.Y.S.2d 494 (City Ct., Syracuse, 1983)), this entire adjournment (70 days) is charged to the People.
Among the arguments presented by the People is the assertion that the adjournment from Defendant's arraignment to March 19, 2012 is not charged to the People for two reasons; the adjournment was for the purpose of Defendant's hiring counsel, and the Defense requested discovery. Both arguments are unsupported by the court file, which clearly indicates that the adjournment was for the purpose of conversion.
At arraignment, Defendant was represented by Clifford Levin, Esq., a staff attorney with the Legal Aid Society. On the next adjourn date, March 19, 2012, Donald Vogelman, Esq. appeared on behalf of the Defendant. Mr. Vogelman served and filed a Notice of Appearance on the Court, and on the record, in open court, in the presence of the Assistant District Attorney representing the People for the purpose of the calendar call, stated “I have been retained and Clifford Levine (sic) gave me the papers. He was the attorney before.” See, Minutes of Calendar Call, March 19, 2012, p. 3, attached to People's motion to reargue and renew dated June 13, 2012 (emphasis added). Mr. Vogelman also stated for the record “since I am newly retained I am giving the People my card which has my address and phone number, Email and fax.” See, Minutes of Calendar Call, March 19, 2012, p. 4, attached to People's motion to reargue and renew dated June 13, 2012 (emphasis added).
On March 19, 2012, the matter remained unconverted. The Court then adjourned the matter for conversion to April 13, 2012, and commented that this date “is beyond the 30.30 date.” See, Minutes of Calendar Call, March 19, 2012, p. 3, attached to People's motion to reargue and renew dated June 13, 2012. Prior to that date, however, the People filed and served a Statement of Readiness dated March 21, 2012.
The crux of the issue presented by this matter is the People's service of their Statement of Readiness upon Mr. Levin, Defendant's prior counsel, rather than upon Mr. Vogelman, Defendant's substitute counsel. The People cite numerous cases for the proposition that service upon Defendant's former counsel is effective; however, these cases are distinguishable from the instant matter.
The People assert that Mr. Levin was never formally relieved as counsel for the Defendant, however, this argument is also unsupported by the record. On March 19, 2012, Mr. Vogelman filed a Notice of Appearance and actually appeared on the record as counsel for the Defendant. Common custom and practice in the Criminal Courts of New York recognize the substitution of counsel in this manner under the circumstances presented herein, without the formality of the Court uttering the words “prior counsel is relieved.”
In People v. Burroughs, 35 Misc.3d 1209(A), 2012 WL 1232969 (Sup Ct, Bx Cty, 2012), a written Notice of Appearance was filed by a staff attorney with the Legal Aid Society, yet a staff attorney with the Bronx Defenders appeared on behalf of the defendant. Unlike the instant matter, in Burroughs, no one from the Bronx Defenders ever filed a written Notice of Appearance with the Court.
In People v. Almarales, 2002 WL 31995811 (S Ct, Kings Cty, 2002), newly retained counsel appeared on the record and filed a written Notice of Appearance, however, “made no reference to her status as defendant's newly retained counsel.” In this matter, defense counsel clearly states, “I have been retained and Clifford Levine (sic) gave me the papers. He was the attorney before.” See, Minutes of Calendar Call, March 19, 2012, p. 3, attached to People's motion to reargue and renew dated June 13, 2012 (emphasis added).
In People v. Osorio, 39 A.D.3d 400, 401, 835 N.Y.S.2d 82 (1st Dept, 2007), “The People addressed (the statement of readiness) to an attorney who had appeared for defendant in Supreme Court on multiple occasions. Although a different attorney was apparently assigned as trial counsel, both attorneys were employed by the same institutional defender at the same address.”
In People v. Odjody, 35 Misc.3d 1221(A), 2012 WL 1592541 (Crim Ct, Kings Cty, 2012), newly retained defense counsel did not file a written Notice of Appearance on behalf of the defendant until after the People had made a statement of readiness.
Thus, none of the cases cited by the People are factually similar to the instant matter.
Further, relying upon Osorio, Odjody, and People v. Clark, 31 Misc.3d 152(A), 2011 WL 2506461 (App Term, 9th, 11th, 13th Dist, 2011), the People assert that the error was excusable since it was not committed in bad faith. As to this issue, the Court is persuaded by the reasoning of People v. Chittumuri, 189 Misc.2d 743, 744, 736 N.Y.S.2d 581 (Crim Ct, Qns Cty, 2001). There, in a case on all fours with the instant matter, defense counsel “actually appeared for the defendant, on the record, in the presence of an assistant district attorney ... the People, however, incorrectly served the certificate (of readiness) ... upon the Legal Aid Society.” “This court finds that the fact that the People acted in good faith is irrelevant under these circumstances. What is relevant is that the People have an obligation to inform the correct defense attorney that they have made a declaration that they are ready for trial.” 189 Misc.2d at 746, 736 N.Y.S.2d 581, citing to People v. Zhu, 171 Misc.2d 298, 654 N.Y.S.2d 272 (S Ct, Kings Cty, 1997), rev other grounds, 245 A.D.2d 296, 670 N.Y.S.2d 122 (2d Dept, 1997).
As in Chittumuri, counsel appeared on the record in the presence of an assistant district attorney tasked with reporting back to the assigned assistant whatever action occurred in relation to the case. Defense counsel made his appearance, and even gave the People his card with all contact information. If the assistant in the part failed in their task, and did not provide the assigned assistant with counsel's contact information, “(t)he defendant should not suffer because the People's mistake was made in good faith.' “ Chittumuri, 189 Misc.2d at 747, 736 N.Y.S.2d 581.
Since the People did not effectively state ready for trial pursuant People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985), the People are charged with the time between March 19, 2012 and April 13, 2012 (25 days). When this time is added to the 71 days charged between January 9, 2012 and March 19, 2012, the result is 96 days charged to the People in this matter. Therefore, this case was properly dismissed pursuant to CPL Sec. 30.30.
People's motion to renew and reargue is denied.
All other arguments advanced by the parties have been reviewed and rejected by this court as being without merit.