The People, Respondent,v.James Brown, Appellant.

Brief

N.Y.November 14, 2016

APL -2015-00171 Court of Appeals State of New York ______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JAMES BROWN, Defendant-Appellant. BRIEF FOR AMICUS CURIAE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK THOMAS P. ZUGIBE District Attorney, Rockland County President, District Attorneys Association of the State of New York Rockland County Courthouse 1 South Main Street, Suite 500 New City, New York 10956 (845) 638-5001 (telephone) (845) 638-5298 (facsimile) Morrie I. Kleinbart Itamar J. Yeger Tammy J. Smiley Sarah S. Rabinowitz Assistant District Attorneys Counsel for Amicus Curiae i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 THE RELEVANT FACTS ................................................................................................... 2 STATEMENT OF AMICUS CURIAE .............................................................................. 5 ARGUMENT THIS COURT DID NOT REQUIRE THE IMPOSITION OF AN UNFEASIBLE “EXCEPTIONAL CIRCUMSTANCES” BURDEN ON THE PROSECUTION IN SIBBLIES, AND SHOULD NOT DO SO NOW ....................................................................................... 8 A. This Court’s holding in Sibblies left the rebuttable presumption of validity unchanged, and, unlike in Sibblies, here the presumption was not rebutted by any indicia in the record that the certificate was illusory; defendant is, therefore, hard-pressed to explain how this particular case calls for a drastic change in existing speedy-trial practice. ................................................................................ 10 B. The requirement of a showing of “exceptional circumstances” would be ineffective, unwarranted, and counterproductive .................................................................................... 17 CONCLUSION .................................................................................................................... 30 CERTIFICATE OF COMPLIANCE ii TABLE OF AUTHORITIES CASES PAGE For the People Theatres of NY, Inc. v. City of New York, 6 N.Y.3d 63, 79 (2005) ......................................................................................................... 13 Marks v. United States, 430 U.S. 188 (1977) ............................................................................................................... 13 Medina v California, 505 U.S. 437, (1992) .............................................................................................................. 28 People v. Acosta, 249 A.D.2d 161 (1st Dept.), lv. denied, 92 N.Y.2d 892 (1998) ..................................... 5, 11 People v. Anderson, 105 A.D.2d 38 (1st Dept.), aff’d, 66 N.Y.2d 529 (1985) .............................................. 9, 11 People v. Brown, 126 A.D.3d 516 (1st Dept. 2015) ......................................................................... 4, 5, 13, 16 People v. Camillo, 279 A.D.2d 326 (1st Dept. 2001) ........................................................................................ 11 People v. Carter, 91 N.Y.2d 795 (1998) .................................................................................... 6, 11, 12, 13, 21 People v. Caussade, 162 A.D.2d 4 (2d Dept.), lv. denied, 76 N.Y.2d 984 (1990) ....................................... 11, 12 People v. Douglas, 264 A.D.2d 671 (1st Dept.), lv. denied, 94 N.Y.2d 862 (1999) ......................................... 11 People v. Farrell, 47 Misc. 3d 524 (Crim. Ct., Queens County, 2015) ......................................................... 25 People v. Guirola, 51 Misc. 3d 13 (App. Term 2016) ....................................................................................... 16 iii People v. Hill, 51 Misc. 3d 134(A) (App. Term 2015) ............................................................................... 26 People v. Jaoui, 31 N.Y.S.3d 839 (Crim. Ct., New York County, 2016) ................................18, 21, 25, 26 People v. Johnson, 44 Misc. 3d 469 (Crim. Ct., Queens County, 2014) ............................................ 15, 16, 25 People v. Joseph, 47 Misc. 3d 265 (Crim. Ct., New York County, 2014) ....................................... 24, 25, 26 People v. Kendzia, 64 N.Y.2d 331 (1985) ............................................................................................... 10, 21, 28 People v. Martin, 28 A.D.3d 583 (2d Dept. 2006) ........................................................................................... 11 People v. McLeod, 44 Misc. 3d 505 (Crim. Ct., New York County, 2014) ............................................. 13, 26 People v. Miller, 113 A.D.3d 885 (3d Dept. 2014) ......................................................................................... 11 People v. Mortoza, 45 Misc. 3d 658 (Crim. Ct., Queens County, 2014) ............................................ 15, 16, 25 People v. Newland, 138 A.D.3d 611 (1st Dept. 2016) ................................................................................. 11, 26 People v. Poole, 48 N.Y.2d 144 (1979) ............................................................................................................ 11 People v. Rodriguez, 135 A.D.3d 587 (1st Dept. 2016) ........................................................................... 26, 27, 28 People v. Santana, 233 A.D.2d 344 (2d Dept. 1996) ......................................................................................... 11 People v. Seepersad, 52 Misc. 3d 400 (Crim. Ct., New York County, 2016) .................... 12, 23, 24, 25, 26, 27 iv People v. Sibblies, 22 N.Y.3d 1174 (2014) .................................... 4, 5, 6, 8, 10, 12, 13, 14, 15, 16, 17, 18, 23 24, 25, 26, 27, 28, 29 People v. Stirrup, 91 N.Y.2d 434 (1998) .........................................................................................10, 11, 21, 28 People v. Vargas, 152 Misc. 2d 377 (Crim. Ct., Bronx County, 1991) ......................................................... 11 Snyder v. Massachusetts, 291 U.S. 97 (1934) ................................................................................................................. 28 STATE STATUTES C.P.L. § 30.30 .................................................................. 1, 3, 5, 6, 9, 10, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 29 Penal Law § 160.15(3) ......................................................................................................... 1, 2 1 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against – JAMES BROWN, Defendant-Appellant. APL – 2015-00171 BRIEF FOR AMICUS CURIAE DISTRICT ATTORNEYS ASSOCIATION OF THE STATE OF NEW YORK PRELIMINARY STATEMENT The District Attorneys Association of the State of New York (hereinafter “DAASNY”) respectfully submits this brief as amicus curiae in the above-captioned appeal, written in support of respondent. By permission of this Court (Leslie Stein, J.), defendant-appellant James Brown (hereinafter “defendant”) appeals from an order of the Appellate Division, First Department (hereinafter “Appellate Division”), entered on March 17, 2015. That order unanimously affirmed a judgment of the Supreme Court, New York County (Gregory Carro, J., on C.P.L. § 30.30 motion, suppression hearings, and mistrial; Ruth Pickholz, J., at trial and sentence) rendered on September 12, 2008, convicting defendant, after a jury trial, of one count of robbery in the first degree (Penal Law § 160.15[3]). Defendant was sentenced in absentia, as a persistent violent felony offender, to an indeterminate term of twenty- two years to life imprisonment. Defendant is currently incarcerated pursuant to the judgment. 2 THE RELEVANT FACTS On September 3, 2006, defendant approached Brian Fagan inside a store in Manhattan, pointed a hypodermic needle at him, told Fagan that the needle contained the HIV virus, and demanded Fagan’s money. Fagan complied with defendant’s demand. Defendant was indicted, under New York County Indictment Number 6292/06, with robbery in the first degree (Penal Law § 160.15[3]). Defendant was also indicted, under New York County Indictment Number 1957/07, with a second count of first-degree robbery for a very similar offense (in which a hypodermic needle was used) that occurred on September 23, 2006. The two indictments were ultimately consolidated. On July 9, 2007, this case was calendared, but defense counsel was not in court, and had filed an Affidavit of Engagement that stated that he was “on trial” and asked the court not to schedule the next appearance between July 27 and July 30. The court asked whether the People “ha[d] any bad dates” (Appendix at 50). The prosecutor in the Part responded, “7/23 is good. The week of 7/30 is bad” (id.). The court adjourned the case to August 8. Eight days later, on July 17, the prosecutor then assigned to the case filed an off-calendar certificate of readiness (id. at 51), and mailed it to defendant’s then-attorney (id. at 52).1 On August 8, defense counsel was once again “on trial” (id. at 55). The court noted that defendant had sent “letter after letter 1 Because the People did not answer ready on July 9, both parties have always agreed that the eight days until the July 17 certificate of readiness was filed are chargeable to the People. The remaining twenty-two days between July 17 and August 8 are the focus of the 30.30 claim on this appeal. 3 after letter” complaining about his attorney (id.). Despite the court’s attempt to dissuade defendant, he requested new counsel. The court asked whether the People were ready for trial “today” (id. at 56). The prosecutor covering the calendar call, who was not the assigned prosecutor who had filed the certificate of readiness, responded, “No” (id. at 57). The court granted defendant’s request for new counsel, but stated that, because defendant had made multiple requests for new counsel, and each attorney substitution “waste[d] time” (id.), the speedy trial clock would “stop [ ] now” (id.). The court adjourned the case to August 15 for the assignment of new counsel (id. at 58). Subsequently, the People answered ready three consecutive times but the defense requested adjournments on each date, before moving for a 30.30 dismissal. In his motion to dismiss the consolidated indictments pursuant to C.P.L. § 30.30, defendant claimed, among other things, that the off-calendar certificate of readiness that was filed on July 17, 2007, “was illusory as the People were not ready again on August 8” (id. at 83). Counsel requested a hearing relating to “how the People were not ready on July 9, 2007 then ready on July 17, 2007 and then not ready on August 8, 2007” (id.). On February 14, 2008, after the People once again declared their readiness for trial, the court denied defendant’s 30.30 motion. The court stated that, because the People had filed a certificate of readiness on July 17, “only eight days” of the relevant period were chargeable to them, which “br[ought] the [People] within the 30.30 time” (id. at 85). Defense counsel asserted that the certificate was “illusory” because the 4 People were not ready on July 9 or August 8 (id.). The court stated that the cases defendant had cited showed that the “illusory” label applied where the People “never had their witness,” which was “not the situation here” (id.). Counsel requested a hearing regarding the reason for the change in readiness, but given that the People and witnesses were poised for the scheduled Wade hearing, the court denied that request (id. at 87). Defendant’s first trial resulted in a mistrial, but he was ultimately convicted, after a retrial, of one count of robbery in the first degree for the September 3 crime against Fagan, and was acquitted of the charge relating to the September 23 robbery. On July 2, 2008, defendant was sentenced in absentia, as a persistent violent felony offender, to an indeterminate term of twenty-two years to life imprisonment. On appeal to the Appellate Division, defendant argued, among other things, that the July 17, 2007, off-calendar certificate of readiness was illusory pursuant to this Court’s decision in People v. Sibblies, 22 N.Y.3d 1174, 1180 (2014), because the People were unready at the next court appearance. In a decision dated March 17, 2015, the Appellate Division rejected defendant’s claims and unanimously affirmed his conviction for first-degree robbery. People v. Brown, 126 A.D.3d 516 (1st Dept. 2015). Relying on Judge Graffeo’s concurring opinion in Sibblies, the Appellate Division held that: On this record, unlike, Sibblies, there is no ‘proof that the readiness statement did not accurately reflect the People’s position, ‘so as to render the prior statement of readiness illusory (Sibblies, 22 NY3d at 5 1180 [Graffeo, J., concurring] [internal quotation marks omitted]). Rather, defense counsel merely speculated that the certificate of readiness was illusory because the People announced that they were not ready at the next court appearance after it was filed, which is insufficient to rebut the presumption that the certificate of readiness was accurate and truthful (see e.g. People v Acosta, 249 AD2d 161, 161-162 [1st Dept 1998] [the defendant did not submit evidence to contradict court’s findings and failed to demonstrate that the People’s readiness statements were illusory], lv denied 92 NY2d 892 [1998]). Brown, 126 A.D.3d at 518. On this appeal, defendant once again raises his 30.30 claim, and again argues that, pursuant to Sibblies, the motion court improperly rejected his claim that the July 17 certificate of readiness was illusory.2 STATEMENT OF AMICUS CURIAE DAASNY is an organization composed of the sixty-two elected District Attorneys from the State of New York, the Special Narcotics Prosecutor of the City of New York, the New York State Office of the Attorney General, the New York State Justice Center for the Protection of People with Special Needs, and their nearly 3,000 assistants. DAASNY aims to improve the procedures for prosecuting crimes through the exchange of information and views between the District Attorneys’ Offices across the state. Because DAASNY is the association that represents District Attorneys throughout New York, and because its primary goal is to improve prosecutorial procedures statewide, it has a substantial interest in the outcome of this case. 2 Defendant also raises some of the other claims that the Appellate Division rejected and adds one entirely new claim, but those claims are not addressed in this amicus brief. 6 In Sibblies, this Court upheld the long-standing legal principle that prosecutors, as officers of the court, are entitled to a “presumption that a statement of readiness is truthful and accurate” (Sibblies, 22 N.Y.3d at 1180), and that that presumption will only be rebutted where there is “‘proof that the readiness statement did not accurately reflect the People’s position.’” Id. (quoting People v. Carter, 91 N.Y.2d 795, 799 [1998]). Relying on an overly broad interpretation of Sibblies -- a case with underlying circumstances significantly different from those presented here -- defendant and his amicus curiae seem to ignore Judge Graffeo’s binding concurring opinion, which confirms that the presumption of validity remains in effect absent proof in the record that the statement of readiness was illusory. Instead, defendant argues that the certificate at issue should have been deemed illusory based on Judge Lippman’s non- controlling position in Sibblies, that whenever a prosecutor is unready for trial subsequent to the filing of a certificate of readiness, the presumption that the certificate was truthful and accurate should cease to apply, unless the prosecutor -- either contemporaneously or in a separate hearing -- establishes that the change in status is due to some “exceptional fact or circumstance.” Sibblies, 22 N.Y.3d at 1178. By requesting the imposition of a mandatory “exceptional circumstances” test, defendant is asking this Court to effectively annul the presumption of validity and impose an undue and impracticable burden on prosecutors, which would delay trials even further, and, consequently, run afoul of the underlying goals of the Legislature in enacting C.P.L. § 30.30. Accordingly, the potential nullification of this long- 7 established presumption, which was fashioned by this Court, and is rooted in the entitlement of all courts to rely on the representations, professionalism, and good faith of prosecutors, is of broad concern to all the members of DAASNY and prompts this filing. 8 ARGUMENT THIS COURT DID NOT REQUIRE THE IMPOSITION OF AN UNFEASIBLE “EXCEPTIONAL CIRCUMSTANCES” BURDEN ON THE PROSECUTION IN SIBBLIES, AND SHOULD NOT DO SO NOW. Defendant requests that this Court ignore the binding rationale of Sibblies, and instead adopt the much broader interpretation that whenever a prosecutor is unready for trial subsequent to the filing of a certificate of readiness, the presumption of validity no longer applies, unless the prosecutor establishes that the change in status is due to some exceptional fact or circumstance. As a threshold matter, defendant is essentially asking this Court to contradict itself, given that the controlling rationale in Sibblies unambiguously upheld the rebuttable presumption of validity, without the requirement of such a test. Moreover, defendant should not be heard to argue that the pertinent facts of this case are such that they warrant a change in this Court’s position; if anything, the record here showcases the People’s diligent efforts to move the case forward, while defendant consistently thwarted the process through his frequent changing of attorneys and requests for adjournments. Indeed, if Sibblies were interpreted and applied in the way defendant requests here -- where the presumption of validity was never rebutted and the record suggests that the People’s certificate of readiness did, in fact, accurately reflect their position at the time it was filed -- it would essentially nullify the rebuttable presumption that a certificate of readiness is valid in any scenario where the People are unready for trial subsequent to filing such a certificate. 9 Most significantly, however, the imposition of a mandatory “exceptional circumstances” test would be both impractical and unworkable, given that a good- faith certificate of readiness can only express the present readiness of the People when it is filed. Indeed, common sense dictates that a showing of “exceptional circumstances” resulting in post-certificate unreadiness actually has no bearing on whether the earlier declaration of readiness was illusory. Of course, a certificate of readiness is not tantamount to a guarantee that the readiness is permanent, and it does not and cannot make any future projections of readiness. Nor does every legitimate reason for temporary unreadiness in a post-readiness posture (such as scheduling difficulties) necessarily constitute “exceptional circumstances” under C.P.L. § 30.30(3)(b). Consequently, a stringent “exceptional circumstances” requirement would do little more than retroactively punish the People for failing to maintain their readiness at every post-certificate court appearance, even where the initial statement of readiness was made in good faith and there are valid reasons for the People’s change in status. Defendant cannot establish that such a punitive measure was contemplated or sanctioned by the Legislature when it enacted C.P.L. § 30.30, given that the People are of course entitled to the full amount of time statutorily afforded them, and there is nothing in the statute to suggest that they should ever have to forfeit their remaining time, simply by answering ready for trial. See People v Anderson, 66 N.Y.2d at 529, 536- 37 (1985). 10 The radical change in the law that defendant proposes would quash the rebuttable presumption of validity, place unrealistic limitations on prosecutors, cause added trial delay and strain on judicial resources due to the necessity for “exceptional circumstances” hearings, and put numerous past and pending 30.30 decisions in jeopardy. It would also inevitably result in an influx of certificates of readiness being improperly declared illusory -- certificates ostensibly filed in good faith, reflecting a present state of readiness at the time of filing. This Court’s decision in Sibblies does not impose this unreasonable burden, the facts of this particular case do not warrant the imposition of such a burden, and defendant should not be permitted to misapply the Sibblies ruling in such a way that it renders an entire generation of valid legal precedent inoperative. A. This Court’s holding in Sibblies left the rebuttable presumption of validity unchanged, and, unlike in Sibblies, here the presumption was not rebutted by any indicia in the record that the certificate was illusory; defendant is, therefore, hard-pressed to explain how this particular case calls for a drastic change in existing speedy-trial practice. For over thirty years, this Court has authorized the filing of certificates of readiness as a valid means of declaring readiness for trial. See generally People v. Kendzia, 64 N.Y.2d 331, 338 (1985). It is likewise well established that a certificate of readiness made in good faith, and reflecting a present state of readiness, serves “to toll the ‘speedy trial clock’ from running for the remainder” of the adjournment period (People v. Stirrup, 91 N.Y.2d 434, 440 [1998]), and the good faith of such a certificate is not negated by the People’s subsequent unreadiness at the next calendar call (see People v. 11 Acosta, 249 A.D.2d 161, 162 [1st Dept.], lv. denied, 92 N.Y.2d 892 [1998]). Indeed, given the clear limitations on statements of readiness to denote a current posture, it is unsurprising that the law requires that a lack of readiness at future court appearances does not serve, as a matter of law, to invalidate an earlier, otherwise proper announcement of readiness. See People v. Martin, 28 A.D.3d 583, 584 (2d Dept. 2006) (“People’s motions for subsequent adjournments did not vitiate their prior announcement of their readiness for trial.”); Stirrup, 91 N.Y.2d at 440; People v. Anderson, 105 A.D.2d 38, 39 (1st Dept. 1984), aff’d, 66 N.Y.2d 529; People v. Douglas, 264 A.D.2d 671 (1st Dept.), lv. denied, 94 N.Y.2d 862 (1999); People v. Miller, 113 A.D.3d 885, 887 (3d Dept. 2014); People v. Camillo, 279 A.D.2d 326 (1st Dept. 2001); People v. Santana, 233 A.D.2d 344 (2d Dept. 1996); see also People v. Vargas, 152 Misc. 2d 377, 381 (Crim. Ct., Bronx County, 1991) (People’s readiness not retracted by adjournment necessitated by “finite and temporary circumstance”). Because an off-calendar certificate of readiness clearly cannot be tested for its validity at the precise time it is filed, it is well settled that such a certificate “is presumed to be accurate and truthful.” Acosta, 249 A.D.2d at 162; People v. Carter, 91 N.Y.2d at 799; People v. Newland, 138 A.D.3d 611, 611 (1st Dept. 2016); People v. Caussade, 162 A.D.2d 4, 12 (2d Dept.), lv. denied, 76 N.Y.2d 984 (1990); People v. Miller, 113 A.D.3d at 887. This Court has held that “the representations of a prosecutor, as an officer of the court, ought generally to suffice to determine [ ] threshold issue[s]” (People v. Poole, 48 N.Y.2d 144, 149 [1979]). Thus, the presumption that a certificate of 12 readiness is valid stems from a court’s entitlement “to rely on the representations of a prosecutor.” Caussade, 162 A.D.2d at 12; see also People v. Seepersad, 52 Misc. 3d 400, 405 (Crim. Ct., New York County, 2016) (“when an Assistant District Attorney, as an officer of the Court, represents that she [or he] is ready for trial, a court not just can, but must, accept that representation as true”). Consequently, once a prosecutor has made a good-faith declaration of readiness, he or she is not required to “affirmatively prove that he [or she] is in fact ready for trial when he [or she] makes that announcement” (Caussade, 162 A.D.2d at 12). The presumption of validity is rebuttable, however, and only applies “[i]n the absence of proof that the readiness statement did not accurately reflect the People’s position or that the [declaration of readiness] was made in bad faith.” Carter, 91 N.Y.2d at 799. In a plurality opinion consisting of two concurring opinions -- stemming from different rationales -- this Court ruled in Sibblies that the People’s off-calendar certificate of readiness was illusory based on that particular record. In the first concurring opinion, then-Chief Judge Lippman (joined by two other judges) took the position that in all instances where an off-calendar certificate of readiness is followed by unreadiness at the next appearance, the certificate should be deemed invalid, unless the People demonstrate that the change in status is attributable to “an exceptional fact or circumstance,” as contemplated by C.P.L. § 30.30(3)(b). Sibblies, 22 N.Y.3d at 1178. 13 Judge Graffeo’s “narrower” concurring opinion (also joined by two other judges) confirmed, however, that there is still “a presumption that a statement of readiness is truthful and accurate” (id. at 1179-80), and that this presumption will only be rebutted where there is “‘proof that the readiness statement did not accurately reflect the People’s position.’” Id. (quoting Carter, 91 N.Y.2d at 799). Accordingly, as the Appellate Division subsequently pointed out in this case, Sibblies “leaves intact well-settled law that a post-certificate assertion that the People are not ready does not, by itself, vitiate the previously filed certificate of readiness” (Brown, 126 A.D.3d at 517- 18).3 Notably, Judge Graffeo concluded in Sibblies that the presumption of validity had been rebutted by the record evidence, which demonstrated that after the People filed the certificate, they “were continuing their investigation,” “sought copies of . . . 3 As the People address in their brief (see Respondent’s Brief at 31-32), the Appellate Division properly viewed Judge Graffeo’s “narrower” (22 N.Y.3d at 1179) rationale as the Court’s holding in Sibblies. The United States Supreme Court has held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of [a majority], ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” Marks v. United States, 430 U.S. 188, 193 (1977) (internal citations omitted). While this Court has never explicitly adopted the Marks rule for its own cases (see People v. McLeod, 44 Misc. 3d 505, 509 [Crim. Ct., New York County, 2014]) that conclusion may well be compelled by the State Constitution. See N.Y. Const. Art. VI § 2(a) (“Five members of the Court [of Appeals] shall constitute a quorum, and the concurrence of four shall be necessary to a decision”). As the McLeod court noted in relying upon Judge Graffeo’s concurrence in Sibblies, “While the Court of Appeals has not adopted a similar rule, it has expressly recognized that this is indeed the appropriate means of construing a fragmented decision of the United States Supreme Court. (For the People Theatres of NY, Inc. v. City of New York, 6 N.Y.3d 63, 79 [2005].) It seems more than reasonable, then, to assume that the Court of Appeals would apply the same rule of construction to its own decisions in the rare case where there is no single rationale adopted by at least four judges.” McLeod, 44 Misc. 3d at 509. Therefore, under the Marks rule, Judge Graffeo’s concurring opinion constituted the holding of Sibblies. 14 medical records” (which they later introduced at trial), and did not explain how they could have been ready when they filed the certificate, given that they were without the same medical records that rendered them unready at the subsequent court appearance. Id. at 1181. In the present case, by stark contrast, there is no such proof to be found anywhere in the record; thus, both the motion court and, subsequently, the Appellate Division, correctly concluded that the record did not rebut the presumption of validity relating to the July 17 certificate of readiness. And, contrary to amicus curiae’s characterization of the Appellate Division decision as a “regression” (see Brief of Amicus Curiae for Appellant at 17-18), it is, in fact, a direct and valid application of this Court’s holding in Sibblies. From the beginning, defendant has made a speculative, blanket declaration that the July 17 certificate was illusory, without pointing to any facts or circumstances that raise a legitimate inference that the certificate was not truthful and accurate. In fact, during the proceedings below, counsel pointed to nothing other than the People’s unreadiness on the date following the filing of the certificate -- when defendant’s then-attorney was not present, the court granted defendant’s motion for new counsel, and the trial could not have commenced -- in support of his claim that the certificate was illusory. Defendant claims that Judge Graffeo’s approach puts an undue burden on the defendant to rebut the presumption of validity (see Defendant’s Brief at 33-34). This interpretation of the Graffeo approach is, however, a mischaracterization of the 15 holding in Sibblies. As discussed in the People’s brief (see Respondent’s Brief at 37-38), a rebuttable presumption like the one recognized in Sibblies calls for only a threshold showing that does not shift the ultimate burden of proof, and does not require the party seeking to rebut the presumption to affirmatively present evidence. Thus, contrary to defendant’s contention, the Graffeo approach reflects that the “burden” of overcoming the presumption of validity merely requires a defendant to point to circumstances in the existing record sufficient to raise an inference that the certificate of readiness was illusory. In Sibblies, this Court correctly concluded that the People’s lack of readiness at the next court date did not, by itself, rebut the presumption of validity. In fact, the prosecutor’s stated reasons for answering not ready raised the inference that the initial declaration of readiness could have been illusory, which was the determining factor that ultimately rebutted the presumption. Here, notwithstanding defendant’s failure to voice any sort of concrete reason to believe that the July 17 certificate was illusory, the courts below still might have come to that determination, had there been any red flags relating to the ceritifcate’s validity in the record, which there were not. Indeed, it is reasonable to surmise, and numerous cases have demonstrated (see e.g., Sibblies, 22 N.Y.3d 1174; People v. Mortoza, 45 Misc. 3d 658 [Crim. Ct., Queens County, 2014]; People v. Johnson, 44 Misc. 3d 469 [Crim. Ct., Queens County, 2014]), that when there has been an illusory declaration of readiness, it is likely that evidence of that will be somehow exhibited in the record. For example, as noted, in Sibblies, there was evidence in the record that the People 16 lacked necessary evidence when they filed the certificate. And, as the People discuss in detail in their brief (see Respondent’s Brief at 46-47), post-Sibblies courts have considered factors such as a pattern of filing certificates of readiness followed by in- court declarations of unreadiness, as raising questions about the validity of the certificates. See, e.g., Mortoza, 45 Misc. 3d 658 (certificate deemed illusory); Johnson, 44 Misc. 3d 469 (same); see also People v. Guirola, 51 Misc. 3d 13, 17 (App. Term 2016) (citing Sibblies and Brown, court deemed statement of readiness illusory due to pattern of filing off-calendar certificates, then answering unready in court, and noted “[t]his is not a case [like Brown] where an off-calendar statement of readiness is filed, followed by one or two requests for adjournments”) (citation omitted). In this case, the record suggests that the certificate was made in good faith, and reflected the People’s present state of readiness at the time of filing. Before filing the July 17 certificate of readiness, the People stated on the record that they anticipated that they would be ready in late July, and the July 17 certificate was the only certificate of readiness the People ever filed. Further, the People’s trial evidence consisted entirely of witness testimony and, unlike in Sibblies, did not include any medical records or forensic evidence that might have required extended time to obtain. There had been ample time prior to the filing of the certificate for the prosecution to have completed its investigation and prepare for trial. Moreover, the People answered ready in court three consecutive times over the course of three months before defendant filed his 30.30 motion. 17 Finally, contrary to defendant’s assertions, the People’s statements of unreadiness on both July 9 (just before the filing of the certificate) and August 8 (after the filing of the certificate) actually highlighted their good faith and the apparent validity of the July 17 off-calendar declaration of readiness. Indeed, had the People been willing to make bad-faith statements of readiness, they easily could have answered ready on those dates -- when defense counsel was absent, the trial could not have commenced, and their actual state of readiness would have gone unchecked. Simply put, there is no evidence in the record to support the allegation that the certificate was illusory; if anything, the record suggests just the opposite. Therefore, unlike in Sibblies, here, the presumption that the certificate was truthful and accurate was not rebutted; and, contrary to the arguments of defendant and his amicus curiae, the facts of this case do not suggest that the filing of the certificate was indicative of any sort of unfair gamesmanship on the part of the People. Accordingly, it defies credulity for defendant to now argue that the imposition of an “exceptional circumstances” test -- an unprecedented burden on the People -- is necessary in order to avoid prosecutorial abuse of existing 30.30 law, when no such abuse is reflected in the facts of this case. B. The requirement of a showing of “exceptional circumstances” would be ineffective, unwarranted, and counterproductive. As has been demonstrated, the Lippman concurrence, upon which defendant so heavily relies, cannot be understood as a statement of the applicable law, and thus, 18 that Sibblies entitles him to relief here. Indeed, defendant has not identified a single case in which a 30.30 court has utilized what he claims as the Lippman rule. To prevail then, defendant must demonstrate that the Lippman concurrence had the better of the argument and should become the law. This he cannot do. In fact, the Lippman approach in Sibblies (suggesting an “exceptional circumstances” test) is fundamentally flawed owing to its failure to account for certain manifest realities with regard to bringing a case to trial, as well as the potential long-term implications of such a requirement. Perhaps the most obvious factor militating against the imposition of an “exceptional circumstances” test is the simple fact that a showing of “exceptional circumstances” resulting in post-certificate unreadiness actually has little or no direct bearing on whether the earlier declaration of readiness was illusory, rendering the test nonsensical and pointless. Judge Lippman seemed to overlook in his Sibblies opinion that post-certificate statements of unreadiness are frequently unavoidable, and very often necessitated by factors outside of the People’s control. Consequently, post-certificate declarations of unreadiness are not automatically indicative of bad faith, or suggestive that a prior statement of readiness was illusory. Nor do the various potential reasons for unreadiness in a post-readiness posture necessarily constitute “exceptional circumstances” under C.P.L. § 30.30(3)(b), even if they are legitimate and necessary. Indeed, “[t]he delays associated with bringing a case to trial are serious and well known. . . . Most are beyond any one person’s control.” People v. Jaoui, 31 N.Y.S.3d 19 839, 842 (Crim. Ct., New York County, 2016) (citations omitted). There are, of course, a multitude of potential reasons for post-certificate trial delay, including, but not limited to, “scheduling difficulties associated with obtaining the availability of all witnesses and the assigned Prosecutor on the same date” (id.), the illness of a witness or one of the parties, and “[l]ife events, like family deaths or the birth of children.” Id. Under C.P.L. § 30.30(3)(b), an exceptional fact or circumstance “includ[es], but [is] not limited to, the sudden unavailability of evidence material to the People’s case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period.” In light of the limited parameters of this provision, it clearly would be an impossible feat in many, or even most scenarios, for prosecutors to meet Judge Lippman’s proposed standard. For example, if, under the proposed test, an assigned prosecutor filed a certificate of readiness, and then subsequently a prosecutor covering the calendar call answered unready for trial due to the assigned prosecutor’s sudden illness, the reason for unreadiness would not constitute an “exceptional circumstance” pursuant to C.P.L. § 30.30(3)(b). Theoretically, therefore, under the Lippman approach, even if there were no evidence in the record that the certificate did not reflect an actual present state of readiness when it was filed, and even if the prosecutor did, in fact, file the certificate in good faith, it would nonetheless be deemed illusory. In such a scenario, therefore, the “exceptional circumstances” requirement would essentially act 20 as a sanction for the prosecutor’s unforeseen illness, and consequent failure to maintain a permanent state of readiness and good health. As a result, not only would the People (justifiably) be chargeable with the adjournment period resulting from their unreadiness, but they would also be retroactively charged with the entire period between the filing of the non-illusory certificate and the declaration of unreadiness. Remarkably, under this set of facts, even if the People were posed to start the trial every day from the time they filed the certificate, leading up to the day of the calendar call when the assigned prosecutor fell ill, the “exceptional circumstances” test would render the initial certificate illusory, resulting in a form of ex post facto punishment for an unpreventable event resulting in unreadiness. This hypothetical highlights some of the innate pitfalls of the Lippman approach. Ironically, under this standard -- which was presumably suggested by Judge Lippman to dissuade the filing of illusory certificates of readiness -- there is no emphasis whatsoever on whether the certificate was or was not reflective of a present state of readiness at the time of filing. In fact, the only inquiry posed by the Lippman approach is whether or not the reason for subsequent unreadiness is “exceptional,” as contemplated by C.P.L. § 30.30(3)(b). It stands to reason, therefore, that in practice, an “exceptional circumstances” test would probably not do much to prevent the filing of illusory certificates, given that the actual validity of the certificate at the time of filing is practically irrelevant under the test. Moreover, aside from these concerns 21 about the effectiveness of the proposed test, the unavoidable truth is that if this Court were to retract the presumption of validity and require such an unrealistic and too often unreachable standard, it would simply be unfair to the People. This Court has recognized that the 30.30 clock can be tolled and readiness announced in different ways, including the filing of a certificate of readiness. See generally Kendzia, 64 N.Y.2d at 338; Stirrup, 91 N.Y.2d at 440; Carter, 91 N.Y.2d at 799. The ability to announce readiness in this fashion serves as a way to move cases to trial in an expeditious fashion, particularly when a witness becomes suddenly available after an in-court announcement of unreadiness, or in a “situation where the People answer not ready because they believe there will be a disposition, but the defendant has second thoughts at the last minute.” See Jaoui, 31 N.Y.S.3d at 842-43. The filing of a certificate of readiness in such a scenario not only tolls the 30.30 clock, but also allows the trial court to be prepared at a subsequent appearance to set a trial date. Indeed, contrary to defendant’s contentions, the use of certificates of readiness is, more often than not, an efficient mode of moving pending cases to trial in a prompt manner. Further, there are scenarios in which the People have no choice but to make off-calendar declarations of readiness in order to preserve the time to which they are statutorily entitled, such as when a prosecutor answers not ready in court, and the court directly states that the adjournment will be chargeable to the People until they are ready and file an off-calendar certificate indicating as much to the court. In such a 22 scenario, the filing of a good-faith certificate of readiness is an important tool available to the People, who, of course, should not be compelled to forfeit time during which they are, in fact, ready to proceed to trial. The People’s interest in preserving the time to which they are statutorily entitled is significant and should be valued by this Court. After all, it is apparent that the reason C.P.L. § 30.30 provides avenues to ensure that the People’s statutorily guaranteed time to prepare for trial is preserved (i.e. C.P.L. § 30.30[4]), is because such safeguards uphold the right of the community to ensure that wrongdoers are brought to answer for their crimes by a prepared prosecutor who can present a strong and effective case. The removal of the presumption of validity and imposition of an “exceptional circumstances” test would, however, seriously frustrate the People’s ability to preserve the time to which they are entitled by filing good-faith certificates of readiness. In fact, all certificates of readiness would essentially be rendered null and void, unless followed by unending readiness (an infrequent occurrence in light of the plethora of potential delays associated with bringing a case to trial), or a change in readiness status attributable only to an exceptional fact or circumstance (which, as noted, excludes a multitude of legitimate and common reasons for post-readiness delay). This potential devaluing of countless previously filed certificates of readiness also leads to another obvious long-term problem stemming from an adoption of the Lippman approach. As a New York criminal court recently phrased it: 23 A change in the law this radical would place at risk literally thousands of cases in which, postreadiness, a prosecutor answered “not ready” with no reason, or gave a legitimate but unexceptional reason for her [or his] unreadiness, with the settled expectation that, under the current state of the law, those answers would not undermine the presumption of validity that she [or he] believed attached to her [or his] prior statement of readiness. Seepersad, 52 Misc. 3d at 407. Indeed, a reversal in this case could threaten “the disposition of potentially thousands of cases in which a speedy trial motion is pending, or has been filed and denied.” Id. It naturally follows that numerous convictions, now in the appellate stage, could also be jeopardized. Moreover, there are other imminent long-term effects of this proposed change in speedy-trial practice that should be seriously considered by this Court. Indeed, the imposition of the proposed “exceptional circumstances” test would not only be manifestly unfair to the People, and probably useless in achieving its purported purpose, but it would also have an unquestionably negative effect on the day-to-day workings of criminal prosecutions. In Sibblies, this Court recognized that the primary motivating factor that prompted the Legislature to create C.P.L. § 30.30 was a “backlog of cases in the criminal courts that caused lengthy delays in bringing defendants to trial.” Sibblies, 22 N.Y.3d at 1176. Even defendant cannot credibly deny that one foreseeable result of this change in the law will be a drastic increase in 30.30 litigation. Court calendars will undoubtedly become more congested, already strained judicial resources will be even more strained, and trials will be delayed even further during the pendency of the 24 inevitable “exceptional circumstances” proceedings and hearings that Judge Lippman referred to in his concurrence. See Sibblies, 22 N.Y.3d at 1178. Accordingly, while the Lippman approach may reflect a reasonable concern that certificates of readiness do not always expedite the process of bringing a case to trial, clearly, the imposition of an “exceptional circumstances” burden on the People is not the proper solution. The imposition of this standard would only create additional problems resulting from increased litigation, and, consequently, more trial delay, while at the same time unjustifiably voiding innumerable non-illusory certificates of readiness. Defendant should not, therefore, be heard to argue that the imposition of an “exceptional circumstances” test, and the removal of the presumption of validity applying to certificates of readiness would ultimately advance the goals underlying the enactment of C.P.L. § 30.30. Notably, in anticipation of the ripple effect that would imminently result from an enforced “exceptional circumstances” standard, and in recognition of the impracticality of the Lippman approach, post-Sibblies criminal courts have conducted analyses warning of the dangers of adopting the approach. See Seepersad, 52 Misc. 3d at 407 (“the increase in 30.30 hearings in otherwise garden variety cases would . . . have the perverse effect of greatly prolonging a large number of criminal cases, seemingly frustrating the very purpose of the speedy trial statute”); People v. Joseph, 47 Misc. 3d 265, 268 (Crim. Ct., New York County, 2014) (“to adopt Judge Lippman’s approach would require the People to answer ready repeatedly or risk exceeding 30.30 time. This is not only unfair to the People, but would also cause 25 police officers to be taken off their non-court related duties on multiple occasions, with concomitant adverse effects on the public’s safety and wallet”); Jaoui, 31 N.Y.S.3d at 843 (same). Defendant has also failed to establish that a drastic change in existing speedy- trial practice is necessary, given that the current system -- which includes the presumption of validity without limitation -- is generally quite effective. After all, it is not as if it is difficult for defendants to rebut the presumption of validity under the current law, when an illusory certificate of readiness has been filed. Unlike the irrelevant factors that would be considered under an “exceptional circumstances” test, factors that do have bearing on the validity of an earlier certificate of readiness -- such as evidence in the record of a pattern of the People filing certificates followed by in- court declarations of unreadiness, or that the People declared readiness before obtaining key evidence -- have been cited by this Court and others as record indicia sufficient to rebut the presumption. See Sibblies, 22 N.Y.3d at 1181; Mortoza, 45 Misc. 3d 658; Johnson, 44 Misc. 3d 469; People v. Farrell, 47 Misc. 3d 524 (Crim. Ct., Queens County, 2015); Joseph, 47 Misc. 3d 265; see also Seepersad, 52 Misc. 3d at 408 (“The current system is . . . effective in identifying the rare case in which a statement of readiness is genuinely illusory, and addressing that situation accordingly. . . . A radical overhaul is simply not warranted.”) (citing Mortoza, 45 Misc. 3d 658). Moreover, in light of all of the varying difficulties with Judge Lippman’s proposed approach, it is unsurprising that while many post-Sibblies New York courts 26 have applied Judge Graffeo’s narrower rationale (see, e.g., People v. Rodriguez, 135 A.D.3d 587, 587-88 [1st Dept. 2016]; People v. Newland, 138 A.D.3d 611, 611 [2016]; Seepersad, 52 Misc. 3d at 403; Jaoui, 31 N.Y.3d at 842-43; People v. Hill, 51 Misc. 3d 134[A] [App. Term 2015]; McLeod, 44 Misc. 3d at 509; Joseph, 47 Misc. 3d at 267-69), defendant cannot point to any lower court that has adopted an “exceptional circumstances” test, or any other state or jurisdiction that has imposed a comparable burden on prosecutors. The reason for this is clear -- not only is Judge Graffeo’s rationale narrower, and thus, controlling, but it is also logical. Judge Graffeo’s approach does not call for a radical or non-sensible change in the law, and takes into account the realities that prosecutors face on a daily basis when coordinating all of the various elements necessary in order to answer ready for trial within the statutorily prescribed period of time. Notably, in Rodriguez, 135 A.D.3d 587, although the Appellate Division once again applied Judge Graffeo’s narrower holding in Sibblies, under that particular set of facts, the court held that the certificate of readiness at issue was illusory. Rodriguez, 135 A.D.3d at 588. Defendant now contends that Rodriguez confirms his point that Sibblies was misapplied in this case, under either the Lippman or Graffeo approach (see Defendant’s Reply Brief at 2-9). Defendant is incorrect. In Rodriguez, the People admitted on the record that they were unready both before and after filing the certificate of readiness because the assigned prosecutor was “on trial,” but did not clarify on the record whether or not they were on trial in the 27 other case when they had filed the certificate. The court held, therefore, that because there was indicia in the record that the certificate was illusory, and the People had failed to clarify the issue, the presumption of validity was rebutted and the certificate was vitiated. Id. Dissimilarly, here, there was nothing in the record to raise an inference of irregularity relating to the July 17 certificate of readiness. Rodriguez is, therefore, easily distinguishable from this case. To the extent, however, that the Rodriguez court’s application of Sibblies is inconsistent with the Appellate Division’s application of Sibblies in this case, it does not help defendant. As a criminal court recently held, “[u]nder the Graffeo opinion in Sibblies and under [the Appellate Division’s holding in this case], the facts of Rodriguez would not have led to a speedy trial dismissal because an unexplained on-the-record statement of unreadiness, by itself, does not vitiate a prior COR.” Seepersad, 52 Misc.3d at 404. The court consequently concluded that Rodriguez “simply [could not] be squared with the Graffeo opinion” (id.). Recognizing, however, that the Graffeo rationale was not only valid, but also binding, and had been properly applied by the Appellate Division in this case, the court in Seepersad ultimately ruled that it would “continue to follow the Graffeo opinion in Sibblies – and hence follow [the Appellate Division’s holding in this case], and not Rodriguez.” Id. at 405. As the court in Seepersad properly recognized, and for all of the reasons detailed in respondent’s brief and this brief, it is clear that the Appellate Divison’s interpretation and application of Judge Graffeo’s holding in Sibblies was correct in this 28 case. Thus, Rodriguez ultimately does nothing to support defendant’s claim. Indeed, if anything, any inconsistency exhibited in the Appellate Division’s holdings in Rodriguez and this case does not enure to defendant’s benefit, but merely emphasizes the need for this Court to solidify and reaffirm the parameters of Judge Graffeo’s rationale in Sibblies -- parameters that were appropriately applied by the Appellate Division in this case. Finally, contrary to defendant’s assertion, he should not be heard to argue that the Lippman approach should be adopted because, under that rule, defendants will more often prevail. There is, of course, no requirement that the state adopt rules that might make it easier for a defendant to obtain relief on a particular claim. Cf. Medina v California, 505 U.S. 437, 451 (1992) (“The Due Process Clause does not, however, require a State to adopt one procedure over another on the basis that it may produce results more favorable to the accused”); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (a state procedure “does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar”). In sum, therefore, this Court should not frustrate the People’s ability to file off- calendar certificates of readiness (a method of announcing readiness that was sanctioned by this Court in Kendzia and Stirrup), by effectively removing the presumption that prosecutors will only utilize that tool in good faith (a presumption that was upheld by this Court in Sibblies). The Appellate Division’s holding affirming 29 that defendant had failed to rebut the presumption of validity of the July 17 certificate of readiness is consistent with this Court’s controlling rationale in Sibblies, countless other pre- and post-Sibblies cases, the intent of C.P.L. § 30.30, and sound public policy. For these reasons, and for all the reasons detailed in respondent’s brief, DAASNY, as amicus curiae, urges this Court to affirm the judgment of the Appellate Division. CDNCLUSION In light of the foregoing, amicus respectfully urges this Court to affirm the judgment of the Appellate Division, First Department. Dated: Mineola, New York August 26, 2016 Respectfully submitted, 1HOMAS P. ZUGIBE District Attorney, Rockland County President, District Attorneys Association of the State of New York Rockland County Courthouse 1 South Main Street, Suite 500 NewGty, New York 10956 (845) 638-5001 (telephone) , (845) 638-5298 (facsimile) By. JaUJJ. ]. c6k:112w~ Safah S. Rabinowitz Assistant District Attorney ' 30 CERTIFICATE OF CDl\1PLIANCE WITH 22 NYCRR § 670.10.3(0 SARAH S. RABINOWITZ does hereby certify as follows: This brief was prepared by computer; the body of the brief is double-spaced and utilizes a proportionately spaced typeface ( Garamond) of 14-point size; the footnotes are single-spaced and utilize the same typeface and 12-point size; and, according to the word count of the word processing system used (Microsoft Word), the brief contains 7,504 words, exclusive of the cover, table of contents, table of authorities, certificate of compliance, and proof of service. Dated: Mineola, New York August 26, 2016 fu,,ru, Q,JdoJ2·,on~ SARAH S. RABINOWITZ Assistant District Attorney STATE OF NEW YORK) ) ss.: CDUNTY OF NASSAU ) SUSAN BEALUAS, being duly sworn, deposes and says that: Deponent is not a partyto the' action and .is over 18 years of age. On September 27, 2016, deponent served two copies of the within BRIEF FOR AMICUS CURIAE upon the following parties: DANIELL£ 1viUSCATELLO, ESQ. Robert DiDio & Associates ' Attorneys for Defendant-Appellant 80-02 Kew Gardens Road, Suite 307 Kew Gardens, New York 11415 HON. CYRUS R VANCE, JR. District Attorney, New York County Attorney for Respondent 1 Hogan Place New York, New York 10013 By: SYLVIA WERTHEIMER Assistant District Attorney at their last known addresses, by depositing true copies of the same enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States post office deparunent within the State of New York, directed to the above-named parties, those being the addresses within the state designated by her/him/them for that pmpose upon the preceding papers in this action, or the place where she/he/ they kept an office, between which places there then was and now is a regular communication by maiL Sworn to before me this 27th day of September, 2016 SUSANBEALUAS MARJE L MURPHY NOTARY PUBUC STATE OF NEW YORK . NASSAU COUNT¥ UC.#O~L 1.2QMM. EXP. _ ~ . ~ =