The People, Respondent,v.Scott Barden, Appellant.

Brief

N.Y.January 5, 2016

To be argued by: RICHARD M. GREENBERG, ESQ. (Counsel requests 20 minutes) APL-2014-00250 _________________________________________________ COURT OF APPEALS STATE OF NEW YORK _________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- SCOTT BARDEN, Defendant-Appellant. _________________________________________________ BRIEF FOR DEFENDANT-APPELLANT _________________________________________________ RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Tel.: (212) 402-4100 November 24, 2014 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 QUESTIONS PRESENTED ...................................................................................... 3 INTRODUCTION ..................................................................................................... 4 STATEMENT OF FACTS ........................................................................................ 8 Scott Barden’s Business Relationship with Anthony Catalfamo .................... 8 The Third-Party Agreement Authorizing Payment for Mr. Barden’s First Stay .......................................................................................................... 8 Mr. Barden’s Stays at the Thompson LES Hotel .......................................... 10 The Hotel Showed a Consistent Pattern of Negligence Throughout Mr. Barden’s Stays ........................................................................................ 14 Motions to Dismiss ........................................................................................ 16 Verdict and Sentencing .................................................................................. 17 ARGUMENT POINT I THE PEOPLE FAILED TO ESTABLISH THAT SCOTT BARDEN KNOWINGLY POSSESSED STOLEN PROPERTY, TO WIT, A CREDIT CARD NUMBER, WHERE THE STATUTE DOES NOT APPLY TO THE ALLEGED POSSESSION OF INTANGIBLE PROPERTY, WHERE HE NEVER PHYSICALLY OR CONSTRUCTIVELY POSSESSED THE CARD OR ITS NUMBER, AND WHERE THERE WAS NO EVIDENCE THAT A CARD OR ITS NUMBER WAS EVER STOLEN. ........................................................ 19 ii POINT II SCOTT BARDEN’S SPEEDY TRIAL RIGHTS WERE VIOLATED WHERE THE PEOPLE EXCEEDED THE ALLOTTED STATUTORY TIME TO BE READY FOR TRIAL AND THE COURT IMPROPERLY EXCLUDED DELAYS ATTRIBUTABLE SOLELY TO THE PEOPLE’S UNREADINESS. ........................................ 30 CONCLUSION ........................................................................................................ 43 iii TABLE OF AUTHORITIES CASES In re Winship, 397 U.S. 358 (1970) ......................................................................... 29 Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................ 29 People v. Barden, 117 A.D.3d 216 (1st Dep’t 2014) ................................ 2, 6, 22, 24 People v. Bodner, #2012-486, NYLJ 1202639616673 (Sup. Ct. Rockland Cty. Jan. 15, 2014) ......................................................................... 22, 25 People v. Bogdonawicz, 59 A.D.2d 959 (3rd Dep’t 1997) ...................................... 27 People v. Boriello, 154 Misc.2d 529 (Sup. Ct. Kings Cty. 1992) ........................... 25 People v. Brothers, 50 N.Y.2d 413 (1980) .............................................................. 41 People v. Brunner, 16 N.Y.3d 820 (2011) ............................................................... 36 People v. Charles, 196 A.D.2d 750 (1st Dep’t 1993) .............................................. 27 People v. Chavis, 91 N.Y.2d 500 (1998) ................................................................. 38 People v. Clark, 267 A.D.2d 4 (1st Dep’t 1999) ..................................................... 27 People v. Cohen, 187 Misc.2d 435 (Sup. Ct. N.Y. Cty. 2002) ................................ 25 People v. Collins, 82 N.Y.2d 177 (1993) ................................................................. 37 People v. Davis, 80 A.D.3d 494 (1st Dep’t 2011) ................................................... 36 People v. Johnson, 148 Misc.2d 103 (Crim. Ct. N.Y. Cty. 1990) ........................... 25 People v. Garland, 69 N.Y.2d 144 (1987) ............................................................... 25 People v. Kendzia, 64 N.Y.2d 331 (1985) .................................................. 31, 39, 41 People v. Manini, 79 N.Y.2d 561 (1992) ................................................................. 27 People v. Matthews, 227 A.D.2d 313 (1st Dep’t 1996) ........................................... 36 People v. Molina, 145 Misc.2d 612 (Crim. Ct. Queens Cty. 1989) ........................ 25 People v. Price, 14 N.Y.3d 61 (2010) ..................................................................... 42 People v. Sibblies, 22 N.Y.3d 1174 (2014) ............................................................. 40 People v. Smith, 82 N.Y.2d 676 (1993) ...................................................... 35, 36, 38 iv People v. Stiles, 70 N.Y.2d 765 (1987) ................................................................... 30 People v. Tansey, 156 Misc.2d 233 (Sup. Ct. N.Y. Cty. 1992) ........................ 23, 24 People v. Wells, 24 N.Y.3d 971 (2014) ................................................................... 41 United States v. Firth, 64 M.J. 508 (U.S. Army Ct. of Crim. Appeals 2006) ......... 25 STATUTES Crim. Proc. Law § 30.30(1)(a) ................................................................................. 30 General Business Law § 511(1) ............................................................................... 21 General Business Law § 511-a ................................................................................ 21 Penal Law § 10.00(8) ........................................................................................ 23, 26 Penal Law § 155.00 ........................................................................................... 21, 22 Penal Law § 155.00(1) ............................................................................................. 26 Penal Law § 160.15(1) ............................................................................ 1, 19, 21, 22 Penal Law § 165.15(2) .................................................................................... 1, 7, 23 Penal Law § 165.40 .................................................................................................. 21 Penal Law § 165.45(2) ........................................................................................ 1, 19 Penal Law § 190.77 .................................................................................................. 22 Penal Law § 190.80(1) ............................................................................................... 1 Penal Law § 190.81 .................................................................................................. 23 Penal Law § 190.82 ........................................................................................... 22, 23 Penal Law § 190.83 .................................................................................................. 23 Penal Law § 190.84 .................................................................................................. 22 CONSTITUTIONAL PROVISIONS N.Y. Const. Art. I, § 6 .............................................................................................. 29 U.S. Const. amend. V ............................................................................................... 29 U.S. Const. amend. XIV .......................................................................................... 29 1 COURT OF APPEALS STATE OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x : THE PEOPLE OF THE STATE OF NEW YORK, : : Respondent, : : -against- : Ind. No. 2448/10 : (New York County) SCOTT BARDEN, : : Defendant-Appellant. : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x PRELIMINARY STATEMENT By permission of The Honorable Eugene F. Pigott, Jr., Judge of the Court of Appeals, granted September 23, 2014, appeal is taken from an order of the Appellate Division, First Department, entered on April 10, 2014, which modified a judgment of the Supreme Court, New York County (Carro, J., at pretrial suppression hearing and motion to dismiss; Merchan, J., at trial and sentencing), rendered on December 7, 2011, convicting Scott Barden, after a jury trial, of one count of identity theft in the first degree, Penal Law § 190.80(1), one count of criminal possession of stolen property in the fourth degree, Penal Law § 165.45(2), one count of theft of services, Penal Law § 165.15(2), and one count of theft of services, Penal Law § 165.15(1). 2 Mr. Barden was sentenced to an indeterminate term of 2 1/3 to 7 years on the identity theft conviction, and to an indeterminate term of 1 1/3 to 4 years on the criminal possession of stolen property conviction. Mr. Barden was sentenced to definite sentences of one year for each of the theft of services counts. The four sentences were ordered to run concurrently. In an order dated April 10, 2014, the Appellate Division, First Department, modified the judgment by vacating the identity theft conviction and dismissing that count, and otherwise affirmed the conviction. People v. Barden, 117 A.D.3d 216 (1st Dep’t 2014). On September 23, 2014, The Honorable Eugene F. Pigott, Jr., granted Mr. Barden leave to appeal to the Court of Appeals. 24 N.Y.3d 959 (2014). 3 QUESTIONS PRESENTED 1. Did the prosecution present legally sufficient evidence to prove that Scott Barden knowingly possessed a “stolen” credit card number, where the statute does not apply to the alleged possession of intangible property, where he never physically or constructively possessed the card or its number, and where there was no proof that a card or its number was even stolen? 2. Did the prosecution exceed the allotted statutory time to be ready for trial, where the court found that 179 days of includable speedy trial time had elapsed, but incorrectly excluded portions of three adjournments, inter alia, on the ground that defense counsel “participated” in setting a new date when the prosecution was not ready and requested an adjournment. 4 INTRODUCTION This case involves a series of stays at the Thompson LES Hotel in lower Manhattan between February and May 2010. Scott Barden stayed at the Thompson LES from February 12 to 17, 2010 pursuant to a third-party billing agreement – a legitimate, frequently-employed method of payment, in which a business associate of Mr. Barden paid for the hotel charges by providing his credit card information directly to the hotel. In this instance, the associate, Anthony Catalfamo, authorized the hotel to charge his American Express card one time up to a total of $2,300. Mr. Catalfamo spoke to several different hotel employees to ensure that the agreement was understood correctly, yet the hotel still made a series of mistakes. On March 1, 2010, a no-show reservation made in Mr. Barden’s name was charged to the same card that was used for the earlier billing agreement, despite the fact that Mr. Catalfamo had not authorized further charges to his card. Mr. Barden stayed at the hotel again from March 23 to 27, and the charges for this period were again charged to Catalfamo’s credit card. Finally, Mr. Barden returned to the hotel again, staying from March 30 to May 14, 2010. The hotel continued to charge Catalfamo’s American Express card, despite its knowledge that it was not authorized to do so, until April 12, when the charges were disputed. The hotel, through its own admitted error, then proceeded 5 to mistakenly charge the Visa credit card of another guest who happened to have the same last name as Mr. Barden from April 12 until May 7, in amounts totaling over $45,000. On May 12, when the Visa card declined further charges, the hotel sought a different method of payment from Mr. Barden for $6,500, the approximate amount then outstanding. He obtained a third-party billing agreement from another business associate on May 13, but that ultimately failed. On the afternoon of May 14, when the entire amount charged to the Visa was disputed and charged back to the hotel, the outstanding balance increased to $51,500, and the hotel called the police and had Mr. Barden arrested. While there was never any evidence that Mr. Barden intentionally tried to escape paying his hotel charges, there was evidence that when the hotel asked him whether they should charge the card “on file,” as is customary with third-party billing agreements, Mr. Barden agreed. Of course, the hotel was well aware that the third-party payment agreement involving Catalfamo’s card was good for one time only; nevertheless, the hotel kept the card number on file attached to Mr. Barden’s profile and continued to charge that card without further authorization from Mr. Catalfamo. Mr. Barden was convicted of first degree identity theft, fourth degree possession of stolen property, and two counts of theft of services. The Appellate Division, in an opinion by Justice Rolando T. Acosta, unanimously vacated the 6 identity theft conviction and dismissed that count. People v. Barden, 117 A.D.3d 216 (1st Dep’t 2014). The court agreed with Mr. Barden that his identity theft conviction could not stand because an essential element of the crime is that the offender “assume the identity of another,” and Mr. Barden never did so. “Because the hotel was aware of defendant’s identity, he did not assume the identity of his associate by charging the credit card and, accordingly, the evidence was legally insufficient to support his conviction of identity theft.” Id. at 220. However, the First Department let stand Mr. Barden’s possession of stolen property conviction, despite the undisputed fact that Mr. Barden never possessed – either physically or constructively – Anthony Catalfamo’s credit card, which, in any event, was not stolen. The prosecution argued, and the Appellate Division agreed with the novel theory that, by permitting the hotel to charge Catalfamo’s “Amex on file,” Mr. Barden constructively possessed the intangible credit card number, and that such “possession” satisfies the stolen property statute. But, the statute does not apply to the alleged possession of an intangible credit card number. For one thing, for purposes of the stolen property statute, “credit card” is defined as an actual, physical card, and not merely its number. Moreover, the law requires possession of “tangible” property; the unlawful possession of personal identifying information, such as a credit card number, is a separate chargeable offense, but is not criminal possession of stolen property. 7 Even if knowledge of the card information without possession of the actual card could suffice, the evidence in this case proved that Mr. Barden never even knew the credit card number, and certainly did not possess it. Thus, he could not be charged with possession of stolen property. For the same reason, the second theft of services charge, premised on the knowing use of a stolen credit card, was also deficient and should have been dismissed. At most, Mr. Barden was guilty of a theft of services for avoiding payment of his hotel bill by knowingly misrepresenting a fact. See Penal Law § 165.15(2). However, the evidence did not establish beyond a reasonable doubt that Mr. Barden ever made a misrepresentation to the hotel – he merely either told them to charge the “AmEx” on file, or he acquiesced in the hotel’s suggestion to do so. Thus, even this charge – the only one remotely consistent with the facts here – was highly questionable. Finally, Mr. Barden’s speedy trial motion should have been granted. The prosecution first answered ready for trial nearly 17 months after the action was commenced. The court charged the People with 179 of their allotted 184 days. However, in so doing, the court erroneously excluded several periods of pre- readiness delay by the People totaling 76 days, placing the People well beyond their allotted time to be ready for trial. 8 STATEMENT OF FACTS Scott Barden’s Business Relationship with Anthony Catalfamo Anthony Catalfamo, the alleged victim in this case, testified that he and Scott Barden met in 2009. A. 237.1 They established a business relationship; Mr. Catalfamo testified that he was an investor in a project financing development in the Bahamas and Mr. Barden handled several aspects of the project pertaining to financing. A. 237-38. In addition to Mr. Catalfamo and Mr. Barden, there were several other people working on the project. A. 241. Mr. Catalfamo testified that he and Mr. Barden were working together to obtain additional funding. A. 248. To further this goal, he and Mr. Barden discussed sending Mr. Barden to stay at a hotel in New York, the Thompson LES. Both men felt that the Thompson LES was the kind of hotel that was necessary to give a good impression of their joint venture. Id. During this conversation, he and Mr. Barden discussed the billing limitations that would be imposed during the stay. Id. The Third-Party Agreement Authorizing Payment for Mr. Barden’s First Stay Vanessa Vega worked at the Thompson LES hotel as the assistant manager of the front desk. A. 321. She was working when Mr. Barden first arrived at the 1 Page numbers preceded by “A.” refer to the Appendix. 9 hotel in February 2010, and she created a third-party billing form for the stay, which was to be paid for by Anthony Catalfamo. A. 323-24. Both Mr. Barden and Mr. Catalfamo informed her of the billing limitations for the visit and worked with her to determine how many nights would be covered. Id. The form Ms. Vega filled out priced Mr. Barden’s stay under the $2,300 limit that Mr. Catalfamo had requested. Craig Weber, the assistant shift manager at Thompson LES, spoke directly with Anthony Catalfamo regarding Mr. Catalfamo’s desired limits on the charges to his card. Mr. Weber wrote on the third-party billing agreement that charges for the February stay were not to exceed $2,300. A. 253-54. Mr. Catalfamo indicated that the use of the card should be for “one swipe, one charge only,” a request that was also clearly documented on the third party agreement in the hotel’s files. A. 253. Despite Mr. Catalfamo’s explicit limitations, the hotel charged $2,323 to the card. The hotel then charged Mr. Catalfamo’s credit card for a no-show under Mr. Barden’s name that occurred two weeks later, A. 155, and continued to charge Mr. Catalfamo for a portion of Mr. Barden’s final hotel stay between late March and mid-April. A. 169. The Thompson LES did not contact Mr. Catalfamo again after the authorized February stay to discuss these additional charges, despite the clear restrictions on the third-party billing agreement. A. 266. 10 Mr. Barden’s Stays at the Thompson LES Hotel After his first stay in February, Mr. Barden approached Mr. Catalfamo and indicated that he was contemplating conducting more business at the Thompson LES. A. 257. Catalfamo testified that he “did not provide any authorization” for charges to his card for this second visit. Id. Though Mr. Barden was apparently disappointed in this outcome, there is no indication that he could have charged Mr. Catalfamo’s card independently. Mr. Barden was never made privy to Catalfamo’s credit card information, as sharing such information was “not customary” in these types of billing arrangements. A. 265. Mr. Catalfamo only testified about his personal willingness to fund further stays at the Thompson LES. Nothing in his testimony referred to whether the hotel stay could have been funded by any of the other individuals involved in the business venture, or whether Mr. Barden could have reasonably believed they were funding the stay. In fact, none of Mr. Barden’s other associates were called at trial, though at least one of them had also provided financial information to the Thompson LES. Catherine Angulo, a former director of the front office for the Thompson LES, testified in detail about all of Mr. Barden’s stays in the Thompson during the spring of 2010. A. 112. She identified a hotel “folio” that documented Mr. 11 Barden’s interactions with the hotel – his name, address, dates of stays, and expenses. Id. Ms. Angulo testified that she knew Mr. Barden as both Scott Barden and Bane Barden. A. 116. She did not testify that she knew him by any other name or that he ever held himself out to be any other person. The folio indicated that Mr. Barden’s first stay at the hotel was between February 12 and 17, 2010. A. 117. The February stay was paid for with an American Express card via a third- party billing agreement. A. 121-22. She testified that a third-party agreement is “basically when the guest is not paying and someone else is paying for the guest.” A. 122. Ms. Angulo indicated that the folio showed Mr. Barden made a reservation for March 1, 2010, for which he was a “no show.” A. 155. She testified that the hotel charged the same American Express card from the February stay $179 as a no-show fee, seemingly without any contact with Mr. Barden or the cardholder. A. 155-56. The card belonged to Anthony Catalfamo and was apparently “attached” to Mr. Barden’s name in the hotel’s files. A. 156. Ms. Angulo indicated that the March 1 reservation was made under the American Express card, but did not elaborate or provide any evidence to that effect. A. 158. She testified on cross that she did not know which hotel employee made that reservation. A. 199. The folio also showed that Mr. Barden stayed at the Thompson LES from March 23 to 25, 2010. A. 158. Mr. Barden stayed one night in the penthouse 12 because of a complimentary upgrade, A. 161-62, and a second night in the same room. A. 161. On March 25, Mr. Barden’s stay was charged to the same American Express card. A. 163. Ms. Angulo testified that Mr. Barden then continued his stay until March 27, staying in a smaller room, and the account was again charged to that same American Express card. A. 165, 166. Ms. Vega, the same assistant front desk manager who had initiated the third- party billing agreement during Mr. Barden’s February stay, was working on March 23 when Mr. Barden arrived for the second stay. A. 327. Ms. Vega indicated that no standard rooms were available on the date Mr. Barden arrived, and thus he stayed in the penthouse. Id. Ms. Vega further testified that she did not discuss the third-party billing arrangements with Mr. Barden when he returned; she simply checked him in. A. 329. When Mr. Barden returned to the hotel on March 30, 2010, Ms. Vega was once again working at the desk. She allowed Mr. Barden to check in because there was “no reason to believe we would have any problems and we were able to receive authorization on the card;” she claimed that this was the case even though she had previously helped to file the third-party billing agreement that limited the charges to the American Express card. A. 338. While Mr. Barden allegedly told Ms. Vega to bill the AmEx on file, he did not mention the cardholder’s name or any identifying information about the card. Id. Similarly, when Mr. Barden signed 13 the Thompson LES’s user activity log, no information about the card or the method of payment was present on the document. A. 253. And, of course, all of the hotel staff witnesses testified that they knew Mr. Barden by his true name; no one ever assumed he was Anthony Catalfamo or anyone else. A. 115-16 (Catherine Angulo), 322 (Vanessa Vega), 380 (Scott England), 399 (Craig Weber). Catherine Angulo also testified about Mr. Barden’s final stay beginning on March 30, 2010. She stated that, on April 6, at 11:32 a.m., an entry was made by Blake Wiesel, in which Mr. Barden had “verbally okay[ed] the balance” and said the hotel should charge the AmEx. A. 177. Blake Wiesel was not called to testify, and there were no other details in the user log to clarify which card Mr. Barden meant. Ms. Angulo claimed on cross that she overheard Mr. Barden refer to an American Express card, but could not say when she heard that and admitted that she did not “know the details.” A. 202. Ms. Angulo testified that she never saw him in possession of Anthony Catalfamo’s credit card. Id. She also admitted that Mr. Barden never asked the hotel to keep Mr. Catalfamo’s card information in his profile. A. 208. When Mr. Catalfamo’s card was declined on April 12, a new third-party billing agreement was sent to Mr. Barden. A. 229. That same day, the hotel committed another error and mistakenly attached to Mr. Barden’s profile the credit card of another guest who happened to have the same last name. A. 180. There 14 was no evidence that Mr. Barden authorized this error. Rather, Ms. Angulo testified she and Mr. Barden had a short conversation in which she informed him they had a Visa card on file and asked if Mr. Barden wanted the hotel to charge it. Having already received a new third-party billing agreement that day, Mr. Barden simply responded, “Yes.” A. 184-86; 229. The Visa card was charged until it was subsequently declined on May 12. A. 187. Upon learning this, Ms. Angulo spoke to Mr. Barden, and told him she would need another method of payment. Mr. Barden asked for a new third-party billing agreement, which was later filled out by Joseph Rizzuti, another business associate of Mr. Barden, and faxed back to the hotel on May 13, 2010. A. 188-89. That agreement authorized charges for up to $6,500 – the outstanding balance as of that date. A. 191. After Mr. Rizzutti’s card was declined, and the prior charges to the Visa were disputed on May 14, the balance owed increased to over $50,000, and Ms. Angulo called the police. A. 195. The Hotel Showed a Consistent Pattern of Negligence Throughout Mr. Barden’s Stays The hotel’s employees admitted that they had made a mistake when they permitted an unauthorized American Express card to remain attached to Mr. Barden’s profile. A. 204. Subsequently, the Visa card of another guest whose last 15 name was also Barden was erroneously charged through the hotel’s negligence. A. 228-230, 361. Although Craig Weber had directly conversed with Anthony Catalfamo about the initial third-party billing agreement, Mr. Weber testified that Mr. Barden claimed to have authorization to use the American Express. A. 405. Mr. Weber was aware of both the monetary and temporal limits on the card, and was aware that the card on file was the same one that he had discussed with the cardholder in February. A. 408-09. He testified that he knew there was no authorization to use the card after February 17, 2011, but that the hotel nonetheless charged the card. A. 410.11. Though Mr. Weber claimed that Mr. Barden repeatedly gave him permission to charge the card, he had no documentation of these conversations and acknowledged that Mr. Barden could not authorize another person’s card with these restrictions. A. 415. In fact, there was no documentation of any of the alleged encounters between Mr. Barden and Mr. Weber, A. 419, even though Mr. Weber knew of the concerns about payment arrangements. A. 421. Several Thompson LES employees claimed to have tried to contact Mr. Barden regarding the payment status of his account, but none of them took further measures such as denying Mr. Barden access to his hotel room. A. 361. Though she was often at the front desk, Ms. Vega only indicated that she called his room 16 and tried “to get his attention” as he went through the lobby. A. 342. It was not until May 14, 2010, that Catherine Angulo took the step of calling the police. Mr. Barden, who remained in his hotel room and never sought to flee the hotel, insisted in his conversations with police that the unpaid charges were a misunderstanding. He contacted a business associate, Joseph Rizzuti, to handle the charges, and did in fact supply an additional third-party agreement on May 13, 2010. A. 383. The amount authorized on that form, $6,500, was the amount that Mr. Barden then owed. When the prior charges to the Visa card were disputed on May 14 and charged back to the hotel, a much larger sum – over $50,000 – was owed. A. 383, 386, 395. After a brief conversation with hotel management, police officers arrived to arrest Mr. Barden on May 14, 2010. Mr. Barden was at that point unable to contact an associate to pay the now outstanding balance of over $50,000, though this was likely complicated by the fact that the hotel waited until Friday after business hours to call the police. Mr. Barden was ultimately arrested at 10:35 p.m. on Friday, May 14, 2010. Motions to Dismiss At the close of the prosecution’s case, defense counsel moved to dismiss the charges. With respect to the count charging identity theft, counsel argued that there was no evidence that Mr. Barden had presented himself as another person or 17 used the personal identifying information of another person. A. 450-51; see also A. 434-36 (counsel noting, and court agreeing, that prosecution theory of case is that Mr. Barden assumed the identity of another person by using the personal identifying information of that person). With respect to the count charging possession of stolen property, counsel argued that there was no evidence that Mr. Barden possessed stolen property or even that there was any stolen property in the case. A. 457-52. As counsel noted, the owner of the purportedly stolen credit card, Anthony Catalfamo, possessed his credit card; at most, the hotel constructively possessed it. But, Mr. Barden certainly did not. Counsel argued that Mr. Barden could not be convicted for possessing a credit card number, as opposed to the card itself. A. 437-39. She also argued that there was no evidence of any stolen property in this case. A. 451-52. For the same reason, counsel argued, the fourth count, charging theft of services through the use of a stolen credit card should also be dismissed. These motions were ultimately denied. 18 Verdict and Sentencing During deliberations, the jury sent several notes to the judge asking for clarification on the law of identity theft, A. 571, and the definitions of “stolen” and “possession” with regards to a credit card. A. 574, A. 577. The jury ultimately convicted Mr. Barden of all counts with which he was charged. On December 7, 2011, the sentencing hearing was held. The judge acknowledged that this case “was brought in a manner different than the way these charges are normally brought,” A. 599, but nonetheless disagreed that the evidence was legally insufficient. Id. The court imposed the maximum permissible sentences, as requested by the prosecution: 2 1/3 to 7 years for identity theft; 1 1/3 to 4 years for possession of stolen of property; and one year each on the two theft of services counts. All of the sentences were ordered to run concurrently. A. 601. 19 POINT I THE PEOPLE FAILED TO ESTABLISH THAT SCOTT BARDEN KNOWINGLY POSSESSED STOLEN PROPERTY, TO WIT, A CREDIT CARD NUMBER, WHERE THE STATUTE DOES NOT APPLY TO THE ALLEGED POSSESSION OF INTANGIBLE PROPERTY, WHERE HE NEVER PHYSICALLY OR CONSTRUCTIVELY POSSESSED THE CARD OR ITS NUMBER, AND WHERE THERE WAS NO EVIDENCE THAT A CARD OR ITS NUMBER WAS EVER STOLEN. An individual is guilty of criminal possession of stolen property in the fourth degree when he “knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when…[t]he property consists of a credit card. . .” Penal Law § 165.45(2).2 The prosecution’s flawed theory was that Scott Barden constructively possessed Anthony Catalfamo’s stolen credit card number that was kept in the hotel’s files. The evidence did not legally support that theory in three critical respects: (1) there was no stolen property, as Anthony Catalfamo always possessed his credit card, and there was no evidence, let alone allegation, that Mr. Barden or anyone else stole it; (2) to be guilty of possession of stolen property, a person must knowingly possess – either physically or constructively – tangible property, i.e., an object that one can hold or touch, which does not include credit card information; and (3) even if the crime could be accomplished by the possession of “stolen” 2 Theft of services, under Penal Law § 160.15(1), requires that the individual obtaining the services knows that the credit card being used is stolen. 20 intangible information, there is no evidence that Scott Barden ever knew or possessed Catalfamo’s credit card number; at most, he knew there was an American Express card on file at the hotel. Because Mr. Barden’s conduct, even as alleged by the prosecution, did not fall within the scope of possession of stolen property or theft of services through the use of a stolen credit card, the evidence was legally insufficient and these counts must be dismissed. A. For Purposes of the Stolen Property Provisions of the Penal Law, the Term “Credit Card” Means a Physical Card and Does Not Include Card Number Information. The prosecution argued both to the court and the jury that a credit card number was the equivalent of a physical credit card. A. 300, 527. According to the People, the Penal Law definition of “credit card” references the General Business Law, which supposedly defines credit card to include card number information. This is incorrect. In fact, while the improper possession and use of credit card information can give rise to culpability in connection with fraud and identity theft crimes, for purposes of larceny and possessory crimes an actual physical credit card must be stolen or possessed. While the possession may be actual or constructive, the object of the crime must be the card, and not information related to the card. 21 Penal Law § 155.00 defines terms applicable to Title J of the Penal Law. Title J (“Offenses Involving Theft”) includes articles 155 through 165. Thus, the definitions in § 155.00 apply to the possession of stolen property charge, Penal Law § 165.40, as well as the theft of services charge under § 165.15(1), in this case. Section 155.00(7) defines “credit card” as “any instrument or article defined as a credit card in section five hundred eleven of the general business law.” General Business Law § 511(1) defines “credit card” as follows: “Credit card” means and includes any credit card, credit plate, charge plate, courtesy card, or other identification card or device issued by a person to another person which may be used to obtain a cash advance or a loan or credit or to purchase or lease property or services on the credit of the issuer or of the holder. The prosecutor took the position that a different provision, General Business Law § 511-a, also applied. That section states: “For purposes of this article ‘credit card’ shall also mean any number assigned to a credit card.” (Emphasis added.) However, when the legislature added that provision in 2002, it did not amend § 511(1); instead, it enacted an entirely separate section, § 511-a. The legislature is presumed to know that the definition in § 511 applied to Title J of the Penal Law. Therefore, the creation of a new separate statute, § 511-a, which applies only to Article 29-A of General Business Law, instead of simply amending § 511, must be presumed to have been an intentional act of the legislature to exclude the intangible information covered by the new law from the definition applicable to Penal Law 22 theft and possessory offenses contained in Title J.3 See People v. Sean Bodner, #2012-486, NYLJ 1202639616673, at *3-4 (Sup. Ct. Rockland Cty. Jan. 15, 2014) (rejecting argument that GBL § 511-a modified § 511(1) for purposes of the Penal Law, and holding that “a credit card number does not constitute a ‘credit card’ under the Penal Law”). In short, the term “credit card,” as used in Penal Law § 165.45(2) (possession of stolen property consisting of a credit card) and § 165.15(1) (theft of services through use of stolen credit card), is defined, pursuant to Penal Law § 155.00(7), in General Business Law § 511, and must be an actual physical card. Since the evidence unequivocally showed that Anthony Catalfamo always possessed his credit card, and never claimed it had been stolen from him, Mr. Barden could not possibly be guilty of possession of a stolen credit card. Indeed, the evidence conclusively showed that the only dealings involving Mr. Catalfamo’s credit card were between Catalfamo and the hotel. There was simply no evidence, 3 Indeed, the Appellate Division recognized, but disregarded, that “the legislative history might seem to indicate that the addition of GBL 511-a in 2002 was meant to apply only to the GBL (2002 Sponsor’s Mem. [‘Section 511-a is created in the [GBL], providing that only for purposes of the [GBL] the term credit card shall also mean any number assigned to a credit card.’]).” Barden, 117 A.D.3d at 234. Supporting this history is the fact that the legislature added section 511-a at the same time as it added a variety of offenses involving identity theft, see Penal Law §§ 190.77 through 190.84. These offenses explicitly apply to personal identifying information, including credit card numbers. Thus, there was no need for the legislature to simultaneously expand the larceny and stolen property statutes to include such intangible identifying information. 23 and the prosecution never contended, that Mr. Barden ever possessed Catalfamo’s American Express card, or that the card, itself, was ever stolen. The requirement that the stolen property be an actual credit card is consistent with the Penal Law’s definition of “possess:” “to have physical possession of or otherwise to exercise dominion and control over tangible property.” Penal Law § 10.00(8) (emphasis added).4 This definition, which is applicable to the offense of possession of stolen property, does not contemplate possession of intangibles, such as information, numbers, intellectual property, or data.5 Neither this Court, nor any other appellate court, has addressed this question prior to the Appellate Division ruling here. However, the lower courts have generally agreed with Mr. Barden’s interpretation. In People v. Tansey, 156 Misc.2d 233 (Sup. Ct. N.Y. Cty. 1992), for example, the issue was whether a defendant could be found guilty of possession of stolen property if he possessed a stolen telephone authorization code but not the actual physical card. The court concluded that the defendant could not be charged 4 In accordance with this definition, the trial court instructed the jury, in explaining the elements of possession of stolen property, that “possess” means “to have physical possession of exercise dominion or control over tangible property.” T. 546 (emphasis added.). Clearly the evidence was insufficient to satisfy this definition. 5 Of course, as noted above, the Penal Law now proscribes the unlawful possession of personal identification information, which includes such intangibles as credit card account numbers and passwords. See Penal Law §§ 190.81, 190.82, and 190.83. Thus, if Mr. Barden actually had possessed Anthony Catalfamo’s credit card number, knowing it was intended to be used to further a crime, he could have been prosecuted for Unlawful Possession of Personal Identification Information in the Third Degree, id. § 190.81, a class A misdemeanor. 24 with possession of stolen property. Considering whether knowledge of the card number or authorization code, without the card, is “tangible property,” subject to being possessed under Penal Law § 10.00(8), the court stated: The statutory definitions of “possess” and “property,” read together, clearly indicate that the Legislature, by virtue of its express command that only “tangible property” can be possessed, has qualified the kind of property that can be the subject of a possessory crime, absent specific inclusion otherwise. Tansey, 156 Misc.2d at 237. Noting that the Penal Law does not define “tangible,” the court looked to its “ordinary” meaning, and found that under a common-usage reading of the relevant statutes, the absence of an allegation that defendants possessed property that is physical or corporeal in form, would appear to resolve the issue in favor of defendants. And in this regard, the People do not dispute that there is no allegation, nor any evidence before the Grand Jury that defendants had possession of the actual telephone calling card or any other stolen physical material. Nor do they controvert defendants' contention that the mere knowledge of these codes is intangible. Id. at 237-38 (emphasis added). After a thorough analysis of the statutory scheme and legislative history, the court held that “the mere knowledge of the code does not constitute a crime under the [possession] statute.” Id. at 240.6 Tansey is one of the few New York cases to address this issue, and continues to be cited with approval for the principle that the identifying information associated with a credit card is not, itself, “tangible” property subject to a larceny 6 As the Appellate Division noted here, there is no question that the credit card number Mr. Barden was accused of possessing is “intangible” in nature. Barden, 117 A.D.3d at 231 n.5. 25 or possessory offense. See, e.g., United States v. Firth, 64 M.J. 508, 512-13 (U.S. Army Ct. of Crim. Appeals 2006) (citing Tansey with approval, and holding that copying account numbers imprinted on a check does not constitute stealing those numbers, and may not be the basis for a stolen property possession charge); People v. Bodner, supra, at *4-5; People v. Cohen, 187 Misc.2d 435, 441 (Sup. Ct. N.Y. Cty. 2002).7 In upholding the stolen property conviction in this case, the Appellate Division improperly relied on this Court’s ruling in People v. Garland, 69 N.Y.2d 144 (1987) (defendant may be convicted of attempted larceny by extortion for attempting to deprive tenants of their possessory interest in an apartment). But Garland concerns the definition of “property” for purposes of the larceny statute, not the definition of “possess” for purposes of the possession of stolen property offense. Thus, it does not bear on the question presented here. There is no inconsistency in recognizing that one may be culpable for stealing intangible property while one may not be culpable for allegedly possessing such property. 7 Prior to the decision in Tansey, two criminal courts reached different conclusions, with one ruling that a card number is not tangible property and is not subject to a possession of stolen property charge, People v. Molina, 145 Misc.2d 612 (Crim. Ct. Queens Cty. 1989), and the other upholding the charge, People v. Johnson, 148 Misc.2d 103 (Crim. Ct. N.Y. Cty. 1990). See also People v. Boriello, 154 Misc.2d 529 (Sup. Ct. Kings Cty. 1992) (“The Legislature has seen fit to limit the definition of possess to ‘tangible property’. It ill behooves this court to change the plain, clear and unambiguous words of the statute.”), 26 The plain language of the Penal Law compels this answer. Compare Penal Law § 10.00(8) with § 155.00(1). In sum, Mr. Barden could only be guilty of possession of stolen property in this case if he possessed, either actually or constructively, a stolen credit card. His knowledge of the credit card number, even if proven, is insufficient under this statute. Nor does it matter if Mr. Barden did request or approve the hotel’s attempts to charge his outstanding balance to the American Express card whose number the Thompson LES kept on file, without his knowledge, in connection with a third-party billing arrangement. In the absence of any evidence that Scott Barden exercised dominion and control over an actual credit card, the stolen property charge and the theft of services charge under count four must be dismissed.8 B. Even if Possession of the Credit Card Number Were Sufficient to Constitute Possession of Stolen Property, the People Failed to Establish that Mr. Barden had Dominion or Control Over a Stolen Credit Card Number. Even if one could be charged with possession of stolen property for possessing the card number without the card itself, this conviction could only be supported if Mr. Barden had actual knowledge of, or dominion or control over, the 8 Defense counsel sufficiently preserved this issue by arguing that merely knowing the credit card number could not be enough to prove larceny or possession of stolen property, since one cannot permanently deprive the owner of a number. T. 436-39. In addition, counsel moved to dismiss based on the prosecution’s failure to prove that a credit card was stolen or that Scott Barden possessed any such stolen property, either actually or constructively. T. 451-52. 27 credit card number. “In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised ‘dominion or control’ over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized.” People v. Manini, 79 N.Y.2d 561, 573 (1992). This case is unlike other dominion or control cases. For instance, courts have upheld criminal possession of credit cards when the physical card was found near the person. People v. Bogdonawicz, 59 A.D.2d 959, 960 (3rd Dep’t 1997) (credit cards found at defendant’s feet); People v. Charles, 196 A.D.2d 750, 750 (1st Dep’t 1993) (conviction when credit cards found in back seat of car in which defendant had recent and exclusive possession was based on legally sufficient evidence). Dominion or control is also often found when the defendant is not physically near the property but there are extrinsic indicators of control. See, e.g. People v. Clark, 267 A.D.2d 4, 4 (1st Dep’t 1999) (defendant owned key to garage where stolen vehicle was found). Nothing in the record supports the argument that Mr. Barden had a similar level of dominion or control over the card number. There was no proof whatsoever that Mr. Barden ever knew the number. The record shows that the Thompson LES interacted directly with the American Express cardholder, Anthony Catalfamo, to 28 receive his billing information. A. 253-54. Mr. Catalfamo testified that he had not provided Mr. Barden with any personal identifying information associated with the card, as it was “not customary” in business arrangements. A. 265. This credit card information was authorized by Mr. Catalfamo to be used during Mr. Barden’s initial hotel stay in February 2010. A. 323-24. When Mr. Barden did not arrive for a later scheduled stay, the hotel charged Catalfamo’s card for this “no-show,” even though the third-party billing agreement was no longer valid. A. 155, 253. When Mr. Barden arrived for his subsequent stays in March, the hotel again used the card on file without asking questions. A. 329, 338. Hotel employees consistently testified that Mr. Barden only requested or agreed that an “AmEx” be charged; he never referred to a specific card either by the cardholder’s name or by a number. A. 338. Mr. Barden’s comments to the hotel employees cannot be read as establishing that he exercised dominion or control over the credit card number. Mr. Barden was not a hotel employee and did not have any control over the hotel’s records in order to make the charges himself. Nor did Mr. Barden have any control over the employees who actually charged the card; he was not a supervisor and did not otherwise exercise any authority over them. Even viewing the evidence most favorably for the prosecution, and even assuming that Mr. Barden did intend to charge Mr. Catalfamo’s card, this conduct 29 does not amount to possession of stolen property. Though he may have wished to charge the bill to Catalfamo’s card, Mr. Barden simply did not exercise dominion or control over the credit card number at any point. * * * Scott Barden never physically or constructively possessed Anthony Catalfamo’s credit card or credit card number. Moreover, neither the card nor the card information could be deemed “stolen” under the circumstances here. The criminal possession of stolen property charge and the theft of services charge under count four are based on legally insufficient evidence, in violation of Mr. Barden’s constitutional right to due process. U.S. Const. amends. V, XIV; N.Y. Const. Art. I, § 6; Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970) (prosecution must prove each element beyond a reasonable doubt). The prosecution failed to prove that Mr. Barden possessed stolen property and the convictions must be reversed and these counts of the indictment dismissed. 30 POINT II SCOTT BARDEN’S SPEEDY TRIAL RIGHTS WERE VIOLATED WHERE THE PEOPLE EXCEEDED THE ALLOTTED STATUTORY TIME TO BE READY FOR TRIAL AND THE COURT IMPROPERLY EXCLUDED DELAYS ATTRIBUTABLE SOLELY TO THE PEOPLE’S UNREADINESS. New York’s speedy trial statute requires that the prosecution be ready within “six months of the commencement of a criminal action” when a felony has been charged. Crim. Proc. Law § 30.30(1)(a). In this case, a felony complaint charging Scott Barden was filed on May 16, 2010; the People had 184 days, or until November 16, 2010, to be ready for trial.9 The People did not announce ready until October 5, 2011, after 507 days had passed. While certain periods were excludable pursuant to § 30.30(4), these exclusions were not sufficient to make the People’s announcement of readiness timely. As a result, the statute requires that the indictment be dismissed. Defense counsel filed a motion to dismiss on § 30.30 grounds on June 8, 2011. In their affirmation in response to this motion the People conceded that 171 days of the 184-day period had passed. A. 51. Defense counsel contested this count before the trial court, arguing that the prosecution incorrectly excluded three periods between January 5, 2011 and April 9 The days included in the count started on May 17, 2010 and ended on November 16, 2010. People v. Stiles, 70 N.Y.2d 765, 767 (1987) (finding that under General Construction Law § 20 the first day should be excluded when measuring the speedy trial period). 31 13, 2011 from its calculation. A. 68 (Tr. 7/27/11)10 The prosecution only counted portions of these three adjournments. A. 53-54. The court denied the § 30.30 motion on September 7, 2011, finding that “approximately” 179 days had elapsed. A. 72 (Tr. 9/7/11). In reaching this number, the court incorrectly adopted the prosecution’s arguments concerning the three adjournments during the period from January 5, 2011 to April 13, 2011, to exclude a total of 49 days. Furthermore, the People did not announce readiness in the 28 days following the ruling on the § 30.30 motion. The People were aware that, even under the court’s ruling, only five days of speedy trial time remained after the September 7, 2011 decision. Though the People are permitted to file a certificate of readiness with the court between adjournments, People v. Kendzia, 64 N.Y.2d 331, 337 (1985), the People did not file a certificate before October 5, 2011. By the time the People announced ready on October 5, 2011, they had significantly exceeded their speedy trial time. 10 For convenience, in addition to Appendix citations, transcripts of various calendar calls will be cited as “Tr. [date].” 32 A. The trial court erroneously excluded 49 days between January 5 and April 13, 2011, interpreting defense counsel’s innocuous scheduling comments as consent for adjournments necessitated by the People’s continued unreadiness. Three periods between adjournments were only partially charged to the prosecution: January 5, 2011 to February 9, 2011; February 9, 2011 to March 2, 2011; and March 2, 2011 to April 13, 2011. This was error, as all of these adjournments were fully chargeable to the People. 1. From January 5, 2011 to February 9, 2011, 35 days are chargeable to the prosecution. On January 5, 2011, the People declared not ready and requested January 26 to accommodate the prosecutor’s schedule, but defense counsel was unable to be present on that day due to a scheduling conflict. A. 58 (Tr. 1/5/11). The court adjourned the matter to February 9. Id. In their response to defense counsel’s § 30.30 motion, the People sought to exclude the period between January 27 and February 9 and only counted twenty-one days. A. 53-54. An additional fourteen days should have been charged to the prosecution during this period. Defense counsel did not explicitly consent to the adjournment, and defense counsel’s unavailability due to scheduling was insufficient to rise to the level of consent. At the subsequent calendar date on February 9, despite the extra time afforded to them due to defense counsel’s scheduling conflict, the People again announced not ready and adjourned. A. 60 (Tr. 2/9/11). 33 2. For the February 9, 2011 to March 2, 2011 adjournment, twenty-two days are chargeable to the prosecution. For the twenty-two day period between February 9 and March 2, 2011, fourteen days were conceded by the People. A. 54. The People announced not ready on February 9 and requested an adjournment until February 23. Defense counsel requested a date for the following week, and the court set the next date for March 2. A. 60 (Tr. 2/9/11). The prosecution included the period until February 23, but sought to charge the balance of the period to the defense. A. 54. The 7-day period from February 23 to March 2, 2011 should also be charged against the prosecution. The adjournment was instigated by the People’s lack of readiness, and defense counsel’s mere unavailability on the proposed date does not trigger exclusion. 3. For the March 2, 2011 to April 13, 2011 adjournment, forty-two days are chargeable to the prosecution. The prosecution conceded fourteen days of the forty-two day period between March 2 and April 13, 2011. The assigned prosecutor did not appear on March 2, but another assistant district attorney requested an adjournment to March 16. Defense counsel indicated that her schedule would not allow her to be present on that date, but the prosecution repeated its request for the same date: PEOPLE: We ask for the 16th. COURT: What date do you want counsel? 34 DEFENSE COUNSEL: How about March 28th. COURT: It has to be after April 8th. April 13th. DEFENSE COUNSEL: That should be fine. COURT: April 13th for trial. A. 63 (Tr. 3/2/11). The prosecution counted fourteen days from March 2, 2011 to March 16, 2011 and sought to exclude the remainder of the adjournment, even though much of it was due to court congestion. At the subsequent calendar date on April 13, 2011, despite the extra time afforded to them, the People were not ready, and continued to announce not ready until October 5, 2011. * * * On July 6, 2011, after the People responded to the 30.30 motion, the court requested the transcripts from these dates, and indicated that defense counsel may have “participated” in the adjournments on these dates. A. 65 (Tr. 7/6/11). It indicated that if counsel participated in setting the date, then defendant “requested part of that adjournment.” Id. Counsel answered that even if she “participated,” the time was includable since the People never answered ready. Id. On September 7, 2011, the court denied the motion, finding a total of 179 includable days, 5 short of the 184 days within which the People were required to be ready. A.72. * * * 35 This Court has ruled that defense counsel’s rejection of a date requested by the People should not alter the allocation of chargeable days pre-readiness. In People v. Smith, 82 N.Y.2d 676 (1993), the question before the Court was “whether the People should be charged with the time beyond the dates to which they requested adjournments.” Id. at 677. The Court held that the People’s contention that “an adjournment which is extended because the defense rejects the original date suggested by the People should be, in part, excludable . . . is without merit.” Id. at 678. The rule we restate today, which requires the prosecution to file a certificate of readiness or make a statement of readiness in open court, objectively establishes the date on which they can proceed and eliminates the need for a court to determine to whom adjournment delays should be charged. Id. The Smith Court also explicitly rejected the idea that the additional delay needed to accommodate defense counsel’s schedule constituted consent and was therefore automatically excludable. It held that consent must be clearly expressed and that merely indicating that dates were inconvenient did not meet this bar. “The People’s contention that defense counsel’s unavailability amounted to consent to a longer delay is also unavailing. Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay.” Id. In conclusion, the Smith Court stated: 36 The adjournments at issue here were, in the first instance, precipitated by the People’s failure to be ready for trial. Other than stating that certain dates were inconvenient, defense counsel never formally consented to the adjournments and did not participate in setting the adjourned dates. Because the actual dates were set either by the court of the prosecution, no justification exists for excluding the additional adjournment time required to accommodate defense counsel’s schedule. Smith, 82 N.Y.2d at 678 (emphasis added). In a gross distortion of Smith, however, the First Department seized on the word “participate” to hold that “participation” by counsel in setting a new date upon an adjournment requested by the People constitutes consent. See, e.g., People v. Davis, 80 A.D.3d 494, 495 (1st Dep’t 2011) (defense counsel actively reset adjournment date “for his convenience”); People v. Matthews, 227 A.D.2d 313, 314 (1st Dep’t 1996) (defense counsel requested longer adjournment due to holidays). This interpretation of Smith – that, if defense counsel participates at all in the setting of a new trial date when the People request continued adjournments without ever answering ready, the time is excludable – was used by the trial court here, but has never been ratified by this Court. See People v. Brunner, 16 N.Y.3d 820, 821 (2011) (noting that this view, as applied in People v. Matthews, 227 A.D.2d 313 (1st Dep’t 1996), remains undecided by this Court). Were this Court to adopt the First Department approach, the salutary rule of Smith would be eviscerated. It simply makes no sense to hold, as this Court has in 37 Smith and other cases, see, e.g., People v. Collins, 82 N.Y.2d 177 (1993), that in the absence of any declaration of readiness by the People, scheduling for the convenience of the court and parties does not result in excludable time, while at the same time holding that defense counsel’s participation in the discussion of what date would be convenient somehow renders the time excludable. After all, it would be absurd to require defense counsel to reject dates that are not convenient while not permitting counsel to suggest dates that are. Only where it is clear that the defense is proactively seeking a longer adjournment, not merely finding a mutually workable date within the same general timeframe, should counsel’s “participation” be considered consent. Otherwise, this “participation” exception will swallow the speedy trial rule. Moreover, imposing a contrary rule would unnecessarily complicate the § 30.30 analysis, requiring judges to parse the minutiae of defense counsel’s responses in order to determine where to draw the line between innocuous comments and consensual participation in setting dates. Furthermore, shifting the focus to defense counsel’s schedule is contrary to the intent of the statute. Section 30.30 specifically focuses on prosecutorial readiness. Thus, when the People precipitate an adjournment due to their continued unreadiness for trial, they should be charged with the entire adjournment, including any time beyond the date requested for adjournment. See 38 Smith, 82 N.Y.2d at 678 (“Inasmuch as the People never stated their readiness for the record in this case, the People should be charged with the entirety of the adjournment periods.” [citing Kendzia]). For instance, if the court were unable to schedule the adjournment on a date requested by the People due to calendar congestion, the prosecution would be charged for the entire period until the court was able to schedule a date. See People v. Chavis, 91 N.Y.2d 500, 505 (1998) (in absence of statement of readiness, any delay due to court congestion is entirely charged to People). The rationale for including these days is that nothing in this period hampers the People’s ability to announce their readiness for trial. Id. Similarly, defense counsel’s inability to be present on the date requested by the People has no effect on the People’s trial preparations. In this respect, these adjournments are unlike generally accepted exclusions, in which the People do have additional burdens such as responding to defense motions and preparing for hearings. Where a prosecution adjournment is extended simply because of counsel’s schedule or court congestion, there are no comparable additional burdens for the prosecution to meet. Nor does this approach grant a windfall to defendants or encourage gamesmanship. Were the People to become ready for trial during a longer adjournment necessitated by court congestion or defense counsel’s schedule, the speedy trial clock could still be stopped at any time with the filing of a certificate 39 of readiness. Kendzia, 64 N.Y. 2d at 337. Since the People have instigated the delay and have the power to stop it, they should be held responsible for the entire period in accordance with § 30.30’s policy. The bright line rule espoused in Smith is simple to apply because it only requires the court to determine which party requested the adjournment. If the prosecution requested the adjournment, then the court will only exclude time based on explicit consent from defense counsel. Finally, under Smith, defense counsel is entitled to reject a proposed date based on scheduling conflicts without being charged for the extra time. Application of the First Department’s “participation” exception would preclude counsel from offering any constructive information on which dates would work for fear of being charged the extra days on a participation theory. In practice, such an unwieldy approach would encourage recalcitrance from defense attorneys; rather than quickly finding a convenient date for all parties, defense counsel would have to repeatedly state which dates wouldn’t work until the court stumbled across a date that did. This case demonstrates the unfair consequences of treating any and all participation in date-setting as consent by counsel. Mr. Barden’s case stagnated for months, but the prosecution was not held accountable for 49 days based entirely on this expansive consent theory. The purpose of the exclusions written into § 30.30 is to ensure that cases are brought to trial quickly while not 40 prejudicing the prosecution for defendant’s motions or other defense-instigated delays. See People v. Sibblies, 22 N.Y.3d 1174, 1178 (2014) (Lippman, Ch. J., concurring) (speedy trial statute “intended to expedite, not delay the defendant’s ability to seek resolution of a case”). Here, defense counsel did nothing to contribute to the delays. Defense counsel’s pre-trial motions were decided on November 10, 2010, and the People were granted the period until January 5, 2011 for preparation following these decisions. A. 53. For the entire period from January 5, 2011 to April 13, 2011, there were no defense motions pending, and defense counsel was available at every adjournment. The People were in no way prevented from preparing for trial or announcing their readiness. Because these periods should have been counted against the People in their entirety, the trial court miscalculated the total chargeable period as 179 days. These periods bring the total chargeable time well above the allowed 184 days. Mr. Barden’s conviction must be reversed and the indictment dismissed. B. From September 7, 2011 to October 5, 2011, the prosecution failed to file a certificate of readiness and did not toll the speedy trial clock. On September 7, 2011, the court ruled that 179 of the prosecution’s 184 days for the speedy trial period had passed. A. 72, 75 (Tr. 9/7/11). Though the prosecution was aware that it had only five days remaining, it made no 41 announcement of readiness. A month elapsed until the next court date in the case. At this time, defense counsel orally renewed her speedy trial objections and asked that the case be dismissed. A. 78 (Tr. 10/5/11). The court denied the October 5 renewal motion, indicating that the prosecution was under no obligation to file a certificate of readiness. The case law does not support this position. In Kendzia, 64 N.Y.2d at 337, this Court made it clear that the only two methods for the People to validly declare readiness are to either announce readiness in open court or file a certificate of readiness. Having a case set for trial does not amount to a declaration of readiness. Id. at 336 (“placement of case on “ready reserve” calendar without objection did not satisfy this requirement”) (citing People v. Brothers, 50 N.Y.2d 413, 416 (1980)). This case is analogous to this Court’s recent decision in People v. Wells, 24 N.Y.3d 971 (2014). There, the question was whether the period after this Court denied leave to the People from an Appellate Term order for a new trial until the next scheduled court date should be excludable. This Court held that “[t]he mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not in itself constitute a reasonable period of delay. . . Otherwise, the People would be permitted to delay retrial for the duration of an adjournment… Such a rule would be inconsistent with ‘the dominant legislative intent informing 42 CPL 30.30, namely, to discourage prosecutorial inaction.’” Id. at ___ (quoting People v. Price, 14 N.Y.3d 61, 64 (2010)). Here, as in Wells¸ the People needed no additional time to be ready for trial under the circumstances, particularly considering the extensive delays before the motion was decided. Once the speedy trial motion was denied on September 7, the People could have answered ready on the record that day or could have filed a certificate of readiness thereafter. They did neither, instead waiting the full duration of the adjournment. Because this 28-day period should have been counted against the People, the court erred in denying the motion to dismiss. * * * These periods are sufficient to bring the speedy trial count well over the allowed 184 days. The additional 49 days from January 5, 2011 to April 13, 2011, bring the total count to 228 days. In addition, the September 7, 2011 to October 5, 2011 adjournment was 28 days. When this period is added to the count, the total chargeable time is 256 days. The People failed to bring the case to trial in the time allotted by § 30.30. In light of the People’s failure to comply with § 30.30, Mr. Barden’s conviction must be reversed and the indictment dismissed. 43 CONCLUSION For all of the reasons stated above, Scott Barden’s conviction should be reversed and, based upon the speedy trial violation, the indictment dismissed. In the alternative, counts 2 and 4 should be dismissed as based on legally insufficient evidence. Dated: New York, New York November 24, 2014 Respectfully Submitted, ____________________________________ RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100