The People, Respondent,v.Scott Barden, Appellant.BriefN.Y.January 5, 2016To 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. _________________________________________________ REPLY 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 April 14, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii ARGUMENT POINT I THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT CONVICTIONS FOR POSSESSION OF STOLEN PROPERTY AND THEFT OF SERVICES BASED ON THE ALLEGED CONSTRUCTIVE POSSESSION OF A CREDIT CARD NUMBER BY SCOTT BARDEN (Replying to Respondent’s Brief at 27-49). ............... 1 A. The Stolen Property Offense at Issue Requires Possession of Tangible Property and Does Not Apply to Intangible Credit Card Numbers. ....................................................................................... 2 B. Scott Barden Never had Physical or Constructive Possession of the Account Number and the Conviction was Based on Legally Insufficient Evidence. ............................................................................ 8 POINT II WHERE THE PEOPLE REPEATEDLY REQUESTED ADJOURNMENTS TO DATES ON WHICH THEY WERE STILL NOT READY FOR TRIAL, DEFENSE COUNSEL’S “PARTICIPATION,” TO THE EXTENT OF SUGGESTING CONVENIENT DATES, DID NOT CONSTITUTE CONSENT TO FURTHER DELAY THE TRIAL. IN ADDITION, THE FINAL THREE-WEEK ADJOURNMENT REQUESTED BY THE PEOPLE TO PREPARE FOR TRIAL WAS CHARGEABLE TO THEM, SINCE THEY NEVER FILED A CERTIFICATE OF READINESS (Replying to Respondent’s Brief at 50-76). .................................................. 12 A. Respondent Distorts the Record and Misconstrues People v. Smith in Claiming that Defense Counsel “Consented” to Adjourned Dates by “Participating” in Determining a Convenient Date for all Parties. .......................................................... 14 ii B. Once the Motion Was Decided and the Prosecution Was Still not ready for Trial, the People Must be Charged with their Requested Adjournment for Trial. ...................................................... 18 CONCLUSION ........................................................................................................ 22 iii TABLE OF AUTHORITIES CASES Matter of Luis C., 124 A.D.3d 109 (2d Dep’t 2014) ................................................. 6 People v. Barden, 117 A.D.3d 216 (1 st Dep’t 2014) ................................................. 5 People v. Bonneau, 94 A.D.3d 1158 (3d Dep’t 2012) ............................................... 8 People v. Brothers, 50 N.Y.2d 413 (1980) ..............................................................20 People v. Hamilton, 46 N.Y.2d 932 (1979) .............................................................20 People v. Jennings, 69 N.Y.2d 103 (1986) ................................................................ 8 People v. Manini, 79 N.Y.2d 561 (1992) ................................................................... 8 People v. Moorhead, 6 N.Y.2d 851 (1984) .............................................................19 People v. Reinaldo O.¸250 A.D.2d 502 (1 st Dep’t 1998)........................................... 6 People v. Sibblies, 22 N.Y.3d 1174 (2014) ................................................ 13, 15, 16 People v. Smith, 82 N.Y.2d 676 (1993) ...................................................... 12, 16, 17 People v. Vukel, 63 A.D.2d 416 (1 st Dep’t 1999) ....................................................21 People v. Wells, 24 N.Y.3d 971 (2014) ...................................................................21 STATUTES Crim. Proc. Law § 30.30(4)(a) .................................................................................19 Gen. Bus. Law § 511-a .............................................................................................. 3 Penal Law § 10.00(8) .............................................................................................4, 5 Penal Law § 155.00(7) ............................................................................................... 2 Penal Law § 190.77 .................................................................................................... 3 Penal Law § 190.78 .................................................................................................... 4 1 POINT I THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT CONVICTIONS FOR POSSESSION OF STOLEN PROPERTY AND THEFT OF SERVICES BASED ON THE ALLEGED CONSTRUCTIVE POSSESSION OF A CREDIT CARD NUMBER BY SCOTT BARDEN (Replying to Respondent’s Brief at 27-49). Respondent correctly recognizes that the Legislature acted to “fill loopholes in pre-existing laws and to expand the criminal penalties available” for identity theft and related frauds, Respondent’s Br. at 34, when it created a new category of criminal offenses in 2002. Penal Law §§ 190.77-190.83; see Respondent’s Br. at 37-38, 40-44. But, Respondent’s strained claim that this legislation also substantively changed traditional larceny and stolen property offenses is simply wrong. Nor does Respondent have a plausible answer to Mr. Barden’s claim that, for purposes of the stolen property and theft of services charges, the term “credit card” is defined as a physical card, and the card number alone does not constitute a “credit card” for these purposes. Appellant’s Br. at 20-26. Respondent’s arguments in this regard are convoluted, unsupported, and illogical. Finally, Respondent fails to show how Mr. Barden supposedly exercised dominion and control over a credit card number maintained by the hotel to which he was never privy. Under Respondent’s theory, Mr. Barden would be just as guilty of possession of stolen property had he merely asked the hotel to bill Tony 2 Catalfamo for his stay, instead of agreeing with the hotel that they could charge the card on file. In short, Respondent has no legitimate response to Mr. Barden’s claim that the evidence was insufficient to support the stolen property and theft of service counts. A. The Stolen Property Offense at Issue Requires Possession of Tangible Property and Does Not Apply to Intangible Credit Card Numbers. Mr. Barden maintains that when analyzing larceny and possession crimes, an actual physical credit card must be stolen or possessed. See Appellant’s Br. at 20. The definition of “credit card” in Penal Law § 155.00(7), which applies to both the criminal possession charge and theft of services under section 165.15(1), incorporates section 511 of the General Business Law (“GBL”). As explained in Mr. Barden’s opening brief, however, section 155.00(7) does not incorporate section 511-a of the GBL. Appellant’s Br. at 21-22. Though section 511-a, by its explicit terms, expands the definition of “credit card” for purposes of Article 29-A of the GBL, it does not affect the Penal Law. The Legislature could have amended Penal Law § 155.00(7) to include section 511-a’s expanded definition of credit card. It could also have amended section 511 directly to include this expanded definition. However, it chose to do neither, leaving Title J of the Penal Law with its traditional definition of credit card. 3 Not surprisingly, Respondent has no persuasive answer to this analysis. Although Respondent purports to agree that statutory language is the best indicia of legislative intent, Respondent’s Br. at 44, Respondent is dead wrong when it says that “What matters most is what the statutes state, not how they state it, and GBL § 511-a states that it modifies GBL § 511.” Id. Section 511-a does not state that it modifies GBL § 511; indeed, it does not even mention that section. It simply states: “For purposes of this article ‘credit card’ shall also mean any number assigned to a credit card.” General Business Law § 511-a. “This article,” of course, means Article 29-A of the General Business Law; it certainly does not mean that section 511(1) is now amended for purposes of Title J of the Penal Law. Respondent’s appeal to legislative history also fails. Its attempt to find support for a broad definition of “credit card” by pointing out legislative efforts to “combat the growing scourge of identity theft and credit card fraud” actually undermines Respondent’s argument. Respondent’s Br. at 34. As Respondent points out, section 511-a was created at the same time that a new array of identity theft legislation was enacted, in which the Legislature actually did create a particularized definition of “personal identifying information” that includes a credit card number and other intangible information. See Penal Law § 190.77 (defining “personal identifying information”). Notably, that definition is, by the explicit terms of section 190.77, applicable only to the specific listed offenses, all of which 4 are found in Article 190 of the Penal Law. The Legislature proved that it was capable of drafting expansive definitions involving intangible account numbers when it so desired. Contrary to Respondent’s claim, Respondent’s Br. at 37-38, 40, it was entirely rational for the Legislature to circumscribe the possession of intangible identifying information in the new Article 190 offenses, while at the same time leaving in place the traditional rules for possessory crimes in Article 165. Moreover, as discussed in Mr. Barden’s opening brief, Appellant’s Br. at 23- 26, unless otherwise expressly specified, Penal Law § 10.00(8) defines “possession,” for purposes of possessory crimes, as being limited to tangible property. Since Penal Law § 155.00 does not expressly expand the definition of “possession,” “property,” or “credit card,” and certainly does not incorporate GBL §511-a, it follows that the crime of possession of stolen property is limited to possession of tangible property. This conclusion is particularly compelling in light of the fact that the identity theft and unlawful possession of personal identifying information statutes, Penal Law § 190.78, et seq., expressly cover intangible account information, including credit card numbers, and thus constitute an exception to the definitions of “possession” and “credit card” in sections 10.00(8) and 155.00(7), respectively. 5 Respondent’s novel argument that the word “tangible” in Penal Law § 10.00(8) can include non-corporeal “concepts,” Respondent’s Br. at 38-39, is obviously meritless. 1 Citing phrases using the word “tangible” in a figurative manner, such as “tangible idea” and “tangible form,” Respondent contends for the first time that the phrase “tangible property” encompasses everything, including an idea. In Respondent’s world, a person can be convicted of possession of stolen property simply by memorizing someone else’s credit card number. Respondent’s Br. at 40. Of course, that reading of the statute would not only render the word “tangible” utterly superfluous, it would infinitely expand the boundaries of criminal liability. 2 Respondent argues that, in light of the 2002 legislative amendments, Mr. Barden is wrong to rely on lower court cases decided prior to 2002 which support his reading of the stolen property statute. Respondent’s Br. at 42-43. Of course, the authorities cited by Mr. Barden remain good law. Ironically, the only authority 1 Although the Appellate Division rejected Mr. Barden’s claim regarding this issue, it agreed that “tangible,” as used in Penal Law § 10.00(8), refers to physical items only, and excludes credit card numbers. People v. Barden, 117 A.D.3d 216, 231 n.5 (1 st Dep’t 2014). Moreover, as the court noted, “The parties do not dispute that Catalfamo’s credit card number – as opposed to the credit card on which the number is embossed – is intangible.” Id. Yet, now, Respondent contends that a credit card number itself can be considered “tangible,” so as to come within the definition of “possess” found in § 10.00(8). 2 Respondent’s discussion of various forms of digital data that one can steal, Respondent’s Br. at 39, is beside the point. Mr. Barden was charged with possession, not theft. As noted, for purposes of the offense at issue, “possession” refers to tangible property. 6 Respondent can muster in support of its position consists of cases from other jurisdictions involving statutes that are markedly different from New York’s, and which have no bearing on Mr. Barden’s case. 3 Id. at 43. At the same time, Respondent virtually ignores a highly pertinent and recent New York appellate decision on point. Less than two weeks after Mr. Barden filed his opening brief with this Court, the Appellate Division, Second Department, decided Matter of Luis C., 124 A.D.3d 109 (2d Dep’t 2014). In that decision, the Second Department considered the very issue before this Court, and explicitly rejected the First Department’s holding in Mr. Barden’s case. Agreeing with each of the arguments raised here by Mr. Barden, the Second Department held that the offense of possession of stolen property requires possession of tangible property, such as a credit or debit card, and does not encompass the possession of intangible account information associated with the card. The court agreed with Mr. Barden that the Penal Law definition of “credit card” in section 155.00(7) refers only to General Business Law § 511, and not § 511-a, “which is an entirely separate section.” Id. at 118. The court also viewed the 2002 legislation adding the new offenses involving 3 Respondent also cites a pre-2002 case, People v. Reinaldo O.¸250 A.D.2d 502, 502-03 (1 st Dep’t 1998). Respondent’s Br. at 43-44. But, that case does not support Respondent’s position. As the court there stated, “We need not decide whether larceny of a credit card includes theft of an intangible credit card number without any asportation of the card itself, because such asportation in fact occurred here.” 7 identity theft as the Legislature’s response to such crimes, such that “[a] person who appropriates account information is not immune from punishment.” Id. at 115. As the court noted, “just as the legislature added credit cards to the penal provisions of the law when the use of credit cards became widespread, and added debit cards when the use of debit cards became widespread, it also added provisions related to the unauthorized possession of the intangible account information when technology demanded.” Id. at 116. Tellingly, Respondent relegates its acknowledgment of Luis C. to a footnote, in which, without any analysis, Respondent simply states that the Second Department was wrong. Respondent’s Br. at 44 n.23. In sum, the Legislature was clearly aware of the issue of identity theft and stolen account information. It could have chosen to incorporate GBL § 511-a into the possessory crimes of Title J, but it chose not to do so. Instead, it created new offenses applicable to such conduct. Respondent must now accept the consequences of its decision to charge possession of stolen property instead of unlawful possession of personal identifying information. 8 B. Scott Barden Never had Physical or Constructive Possession of the Account Number and the Conviction was Based on Legally Insufficient Evidence. Respondent argues that because he assented when asked by hotel staff whether to charge the card on file, Mr. Barden thereby exercised dominion and control over the “stolen” card number. As Respondent indicates, however, the analysis for constructive possession is whether there was a “‘sufficient level of control’ over the actual possessor.” Respondent’s Br. at 41-42 (citing People v. Manini, 79 N.Y.2d 561, 573 (1992)). Such control is absent here, and in any event, the card number was never “stolen.” Respondent cites two cases to demonstrate the level of control allegedly exercised by Mr. Barden, but neither is helpful to Respondent. Respondent’s Br. at 46. For example, in People v. Jennings, 69 N.Y.2d 103 (1986), the defendants schemed to temporarily move a bank’s funds, which they were contracted to deliver, into their own bank account, so that they could obtain the short-term monetary benefit. Similarly, in People v. Bonneau, 94 A.D.3d 1158 (3d Dep’t 2012), the defendant – an auctioneer – was required to remit the proceeds of certain sales to the victim within 15 days. He did not do so, instead depositing the funds in his own business account and using them to pay his own expenses and debts. In short, each case involved a defendant actually holding another’s money, 9 depositing the funds into their own accounts, and using the money for their own benefit. Here, not only did Mr. Barden never have physical possession of Catalfamo’s credit card, he also never knew the number and could not have used the credit card independently. And, despite Respondent’s repeated assertions that it was Mr. Barden’s misrepresentations that caused the hotel to charge Catalfamo’s card, see, e.g., Respondent’s Br. at 46, Mr. Barden himself never had access to the credit card or the number, and certainly had no way to control the hotel employees’ actions in charging the card. Respondent’s citation to cases involving larceny charges based on false pretenses or embezzlement, Respondent’s Br. at 46-47, is misplaced, as Mr. Barden was not charged with larceny. He was charged with possession of stolen property, but the prosecution has never demonstrated that any property was stolen, or that Mr. Barden possessed any such stolen property. Respondent claims that the prosecution was not required to prove that Mr. Barden knew Catalfamo’s credit card number, even though they repeatedly claim that Mr. Barden unlawfully “possessed” the “stolen” card number. Respondent’s Br. at 47. Instead, Respondent alters its theory by suggesting that “the critical question is whether defendant exercised dominion and control over the account, not whether he knew Catalfamo’s 16-digit credit card number.” Id. It is unclear what Respondent means by its contention that Mr. Barden exercised control over 10 the “account,” but, regardless, it is apparent that he did nothing of the kind. Mr. Barden had no control over the hotel’s actions in charging Catalfamo’s account, just as he had no control over the hotel when it later erroneously charged the account of another guest who happened to have the same last name. The hotel knew from day one that it was not permitted to charge Catalfamo’s card after Mr. Barden’s first short stay, but through its own malfeasance it continued to do so. At any time, the hotel could have, should have, and ultimately did tell Mr. Barden that the “card on file” was not an acceptable form of payment, and that he was required to find a different method of payment. When the hotel informed Mr. Barden that American Express had rejected the charges on the card, he immediately attempted to secure a different third-party payment agreement, but before he could do so, the hotel began charging the other Barden account. If, as Respondent claims, Mr. Barden exercised dominion and control over Catalfamo’s Amex account, one would expect that he would have managed to continue to incur charges to that account. Respondent’s weak arguments are like trying to fit a square peg in a round hole. While Mr. Barden certainly was responsible to pay his hotel bill, the hotel’s negligence in improperly charging Anthony Catalfamo’s credit card does not mean that Catalfamo’s credit card number was “stolen,” or that Scott Barden “possessed” it, such that he could be guilty of possession of stolen property. 11 * * * In sum, contrary to Respondent’s assertions, the evidence regarding criminal possession of stolen property and theft of services was legally insufficient. The convictions stemming from these charges must be reversed and these counts of the indictment dismissed. 12 POINT II WHERE THE PEOPLE REPEATEDLY REQUESTED ADJOURNMENTS TO DATES ON WHICH THEY WERE STILL NOT READY FOR TRIAL, DEFENSE COUNSEL’S “PARTICIPATION,” TO THE EXTENT OF SUGGESTING CONVENIENT DATES, DID NOT CONSTITUTE CONSENT TO FURTHER DELAY THE TRIAL. IN ADDITION, THE FINAL THREE-WEEK ADJOURNMENT REQUESTED BY THE PEOPLE TO PREPARE FOR TRIAL WAS CHARGEABLE TO THEM, SINCE THEY NEVER FILED A CERTIFICATE OF READINESS (Replying to Respondent’s Brief at 50-76). At three consecutive court appearances in early 2011, after having never answered ready in the case, the prosecution again answered not ready and requested further adjournments. Defense counsel neither requested, nor consented, to an adjournment on any of these occasions. However, in each instance, the date requested by the prosecution was not convenient for defense counsel, who responded to the prosecution’s request by suggesting more convenient dates within the same general time frame. Yet, even though the People did not answer ready until more than six months later, the trial court and Appellate Division excluded portions of the adjournment from the speedy trial time because defense counsel “participated” in setting a convenient trial date. This was error based on a skewed reading of People v. Smith, 82 N.Y.2d 676 (1993), and if permitted to stand, would eviscerate the purpose of the speedy trial rule “to expedite, not delay the defendant’s ability to 13 seek resolution of a case.” People v. Sibblies, 22 N.Y.3d 1174, 1178 (2014) (Lippman, Ch. J., concurring). Respondent continues to advocate the remarkable position that, despite the People’s continued unreadiness and their unilateral requests for adjournments, they should get additional time added to their statutory allotment merely because the court accommodated defense counsel’s schedule in setting the next court date. Such a rule is untenable and is inconsistent with the actual holding of Smith. Further, after the trial court ruled against Mr. Barden on his speedy trial motion, finding 179 days of includable time, the People – who had still never answered ready for trial – requested an additional three weeks to prepare for trial. 4 On the next date, when the People finally, after nearly two years, answered ready, defense counsel orally moved to dismiss, asserting that the additional three weeks requested by the People put them over the allotted 184 days. This motion, too, was denied. Respondent relies on another perversion of the speedy trial statute: the “typical exclusion that courts routinely grant to return a case to a trial posture following a decision on a dispositive motion.” Respondent’s Br. at 67. Of course, that is the problem: courts in the First Department routinely flout the statute by 4 In this case, the People had 184 days to answer ready for trial; thus, even under the court’s erroneous ruling, the People had only five days left when they requested the additional three- week adjournment. Despite this, the People failed to file a certificate of readiness within the statutory time frame. 14 presuming that any adjournment following a decision on a motion is automatically excludable. But, this makes no sense and does not comport with the language or intent of the statute or this Court’s jurisprudence. A. Respondent Distorts the Record and Misconstrues People v. Smith in Claiming that Defense Counsel “Consented” to Adjourned Dates by “Participating” in Determining a Convenient Date for all Parties. In trying to fit this case within its tortured reading of Smith, Respondent characterizes what occurred as the defense “proactively seeking longer adjournments than the prosecutor had requested,” and claims that the defense “expressly sought additional time on top of the adjournment that the prosecutor had requested.” Respondent’s Br. at 61. According to Respondent, when defense counsel explained why the particular date sought by the People was inconvenient for her – for example, that she would be on trial – she was actually saying that “she needed more time,” and her suggested dates “were not merely attempts to work within the prosecution’s time frame,” but instead, were “stand-alone requests for extra time, separate and apart from the adjournments sought by the prosecutor.” Id. These characterizations are simply untrue. Indeed, given that the People had never answered ready for trial, and in each instance at issue here, they remained not ready on the following adjourned dates, it is outrageous for Respondent to seek to evade the People’s responsibility for the delays by blaming the defense. There 15 is no question that the sole reason Mr. Barden’s trial could not go forward on January 5, 2011, February 9, 2011, and March 2, 2011l, was the prosecution’s lack of readiness. There is absolutely nothing in the record to support Respondent’s bogus claim that defense counsel independently made “stand-alone” adjournment requests because she “needed more time.” Ironically, Respondent contends that, if this Court were to charge the prosecution with these delays, “game-playing would be encouraged.” Respondent’s Br. at 62. According to Respondent, “defendants would have an incentive to request lengthy adjournments whenever the People asked for more time, in hope that the full delays would be charged to the People.” Id. But, of course, it is Respondent who is seeking to game the system. After all, when the prosecution states that it is not ready and requests an adjournment to a specific date, and then fails to answer ready on that date or file a certificate of readiness in between court appearances, it is pure gamesmanship to claim that they should not be held responsible for the resulting delays. In essence, just as the prosecutor’s statement of readiness was deemed “illusory” in People v. Sibblies, 22 N.Y.3d at 1180-81 (Graffeo, J., concurring), so too here, the prosecution’s adjournment requests were “illusory,” since the People were not ready on the very date they requested or for months thereafter. Respondent complains that it would be unfair to the People to charge them with the 16 additional days beyond their requested adjournment in order to accommodate defense counsel’s schedule. But, the simple answer is that the People have complete control over the allocation of the speedy trial time: to avoid being charged with the delay, the prosecution can simply file an off-calendar certificate of readiness when they are actually ready for trial. See Sibblies, 22 N.Y.3d at 1177 (“the off-calendar certificate allows the People to declare readiness in a timely manner”) (Lippman, Ch. J., concurring). The faulty notion that any days added to a prosecution pre-readiness adjournment request to accommodate defense counsel’s schedule are automatically excludable originates with this Court’s statement in Smith: “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.” Smith, 82 N.Y.2d at 678 (emphasis added). The context in which the Court used the word “participate” makes clear, however, that the Court did not intend to exclude all time beyond the prosecution’s request whenever defense counsel indicates her unavailability on the date requested by the People and either assents to or suggests a better date in the general time frame. Yet, that is how Smith has been distorted by the lower courts. 17 The practical effect of upholding the denial of Mr. Barden’s 30.30 motion would be that, going forward, defense counsel would be well advised to merely tell the court that the date requested by the prosecution is not convenient. If the judge asks counsel what date she would like, she should refuse to suggest a date. And, if the court selects a date, counsel should avoid assenting by saying “that’s fine” or even “thank you.” In other words, as long as counsel does not “participate” in coming up with the new date, her mere unavailability on the dates proffered would not disadvantage her client. As this Court held in Smith: “The People contend that an adjournment which is extended because the defense rejects the original date suggested by the People should be, in part, excludable from the time chargeable to them. This argument is without merit.” 82 N.Y.2d at 678. It is inconceivable that this Court intended that, by offering an alternate date instead of simply rejecting the proposed date, defense counsel has now consented such that the additional delay is excludable. Of course, if defense counsel does truly “participate” in setting the new date, such that consent can be readily inferred, that would be a different situation. For example, if the People asked for one week and the defense followed by asking for an additional month, no one would contest exclusion of the additional time. But, where, as here, the People have never answered ready, and continue to not be ready, defense counsel’s cooperation in determining a realistic workable date for 18 trial within the general time frame of the People’s request may not be deemed consent. B. Once the Motion Was Decided and the Prosecution Was Still not ready for Trial, the People Must be Charged with their Requested Adjournment for Trial. As Respondent concedes, on September 7, 2011, after the court denied Mr. Barden’s speedy trial motion, the People “requested” a three-week adjournment to prepare for suppression hearings ordered almost one year earlier. Respondent’s Br. at 74 (court set trial date “following the People’s request;” “the People sought a three-week adjournment on September 7”). Yet, even though the People had never answered ready in the preceding year and a half, Respondent contends that, pursuant to a common practice in the First Department, the prosecution was entitled to delay Mr. Barden’s trial for at least another month without consequence. Respondent’s Br. at 67 (“lower courts routinely approve exclusions of about a month – sometimes more – following a decision on a significant motion”). That such a practice of giving the prosecution additional excludable time to delay the trial, essentially changing the six-month statutory limit to seven months, is “routine” in one Department does not mean it is either lawful or fair. Respondent’s claim that “[t]he Legislature mandated this exclusion,” Respondent’s Br. at 68, is pure sophistry. In fact, the automatic exclusion is a creature of the 19 First Department’s creative interpretation of the statute, and is not applied in the other Departments. This Court should now clarify that, in a pre-readiness posture, post-motion adjournments granted to afford the People additional time to prepare are not automatically excluded from their speedy trial time. Respondent’s claim is based on the fiction that the period of delay after a motion is decided can be viewed as “resulting from” motion practice and is automatically excludable under Criminal Procedure Law § 30.30(4)(a). Respondent’s Br. at 69. Under this theory, when a motion is under consideration, a case lies in “suspended animation” until the motion is decided, and it is the decision on the motion that triggers the People’s need to “re-animate the case.” Id. at 69, 70. In other words, although the case had been pending for about sixteen months without the prosecution ever having answered ready, when the defense filed a speedy trial motion, the prosecution was supposedly entitled to suspend any preparation on the case until the motion was decided, after which they could adjourn the case for a month and begin preparing again without the additional delay being counted against them. As Respondent correctly points out, Respondent’s Br. at 70, this Court has ruled that, where the prosecution had already answered ready on several dates set for trial, a court-instigated adjournment for trial following its decision on a defense motion should not have been charged to the People. People v. Moorhead, 6 20 N.Y.2d 851, 852 (1984). Of course, the critical distinguishing factor, as demonstrated by the cases relied on by this Court in Moorhead, is that the People had already answered ready. See People v. Brothers, 50 N.Y.2d 413, 417 (1980) (delay caused by court congestion is not excludable if the prosecution has not answered ready for trial, since the court congestion does not “operate to prevent the District Attorney from being ready for trial”); People v. Hamilton, 46 N.Y.2d 932, 933 (1979) (time needed by prosecution to investigate crime is not excludable). What can be gleaned from Moorhead, and the principle upon which it rests, is that until the People answer ready, either by announcing readiness in court or by filing a certificate of readiness at any time, adjournments granted to permit them to prepare to proceed must be charged to them. Rather than accept that the statute requires the prosecution to answer ready (and to actually be ready), Respondent tries to shift responsibility onto the defense. For example, Respondent complains that “as a result of defendant’s suppression motion, the prosecutor had to prepare to litigate three separate suppression claims.” Respondent’s Br. at 71. In fact, the need for the People to prepare for hearings and trial was not caused by the defense motions; it was the result of the District Attorney filing criminal charges against Mr. Barden. We do not suggest that the prosecutor did not need to prepare for the suppression hearing; we only contend that, consistent with the statute and this 21 Court’s jurisprudence, the time needed by the prosecution to prepare counts towards their speedy trial time. In sum, where the People have never answered ready, the three-week adjournment granted at their request to prepare for hearings following the court’s rejection of Mr. Barden’s speedy trial motion is not excludable. To the extent that the First Department has recognized an automatic exclusion in such circumstances, this Court should make clear that this rule should no longer be followed. Cf. People v. Wells, 24 N.Y.3d 971, 973-74 (2014) (period following date on which order for new trial becomes final is not automatically excludable under section 30.30(4)(a), and to extent that First Department held otherwise in People v. Vukel, 63 A.D.2d 416 (1 st Dep’t 1999), it should not be followed). 22 CONCLUSION For all of the reasons stated above and those contained in his opening brief, 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 April 14, 2015 Respectfully Submitted, ____________________________________ RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant Scott Barden OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100