The People, Respondent,v.James Brown, Appellant.BriefN.Y.November 14, 2016 New York County Clerk’s Index No. APL-2015-00171 Court of Appeals State of New York JAMES BROWN, Appellant, – against – THE PEOPLE OF THE STATE OF NEW YORK, Respondent. BRIEF OF AMICUS CURIAE THE BRONX DEFENDERS IN SUPPORT OF DEFENDANT-APPELLANT CLEARY GOTTLIEB STEEN & HAMILTON LLP Ari D. MacKinnon Darryl G. Stein Molly B. Calkins Attorneys for The Bronx Defenders Amicus Curiae One Liberty Plaza New York, New York 10006 Telephone: 212-225-2000 Facsimile: 212-225-3999 Dated: September 9, 2016 ii Table of Contents THE BRONX DEFENDERS’ INTEREST IN THIS CASE ..................................... 1 PRELIMINARY STATEMENT ............................................................................... 1 BACKGROUND ....................................................................................................... 3 I. History and Purpose of § 30.30 ....................................................................... 3 II. Today, Defendants in New York City Continue to Face Tremendous Court Delays .............................................................................................................. 6 III. Defendants Face Grave Collateral Consequences as a Result of Court Backlogs........................................................................................................... 8 IV. The Failure to Enforce § 30.30’s Readiness Requirement Has Rendered the Statute Ineffective to Combat Court Delay ................................................... 12 ARGUMENT ........................................................................................................... 14 I. Section 30.30 Requires the People’s Actual Readiness for Trial .................. 14 II. The People Bear the Burden of Excluding Periods of Delay ........................ 18 CONCLUSION ........................................................................................................ 27 iii TABLE OF AUTHORITIES Page(s) Rules and Statutes C.P.L. § 30.30 ................................................................................................. passim Cases Barker v. Wingo, 407 U.S. 514 (1972) ................................................................................... 4-5, 10 People v. Ausby, 46 Misc.3d 126(A) (App. Term, 1st Dep’t 2014) ...................................... 13 People v. Berkowitz, 50 N.Y.2d 333 (1980) ................................................................................ 5 People v. Brooks, 190 Misc. 2d 247 (App. Term, 1st Dep’t 2001) ........................................ 16 People v. Carter, 91 N.Y.2d 795 (1998) ................................................................................ 25 People v. Castro, No. 02-239, 2001 WL 1691976 (App. Term, 1st Dep’t Dec. 31, 2001) .. 13 People v. Cates, 48 Misc. 3d 135(A) (App. Term, 1st Dep’t 2015) ..................................... 13 People v. Chavis, 91 N.Y.2d 500 (1998) ................................................................................ 14, 16, 17 People v. Colon, 59 N.Y.2d 921 (1983) ................................................................................ 16 People v. Correa, 49 Misc. 3d 127(A) (App. Term, 1st Dep’t 2015) ..................................... 13 iv People v. Cruz, 111 A.D.2d 725 (1st Dep’t 1985) .............................................................. 13 People v. Doe, 46 Misc. 3d 140(A) (App. Term, 1st Dep’t 2015) ..................................... 13 People v. England, 84 N.Y.2d 1 (1994) .................................................................................... 12, 14, 15, 18 People v. Farrell, 47 Misc.3d 524 (Crim. Ct. Queens Cty. 2015) .......................................... 26 People v. Ganci, 27 N.Y.2d 418 (1971) ................................................................................ 3-4 People v. Guirola, 51 Misc.3d 13 (App. Term, 2d Dep’t, 2, 11, & 13 Jud. Dists. 2016) ........ 26 People v. Gutter, 222 A.D.2d 330 (1st Dep’t 1995) .............................................................. 13 People v. Hamilton, 46 N.Y.2d 932 (1979) ................................................................................ 24, 25 People v. Kendzia, 64 N.Y.2d 331 (1985) ................................................................................ 14, 19 People v. Liotta, 79 N.Y.2d 841 (1992) ................................................................................ 24 People v. Lomax, 50 N.Y.2d 351 (1980) ................................................................................ 17 People v. Mariner, 2016 NY Slip Op 50994(U) (App. Term, 1st Dep’t July 6, 2016) ............ 26 People v. McLeod, 44 Misc.3d 505 (Crim. Ct. N.Y. Cty. 2014) .............................................. 26-27 v People v. Minor, 144 Misc. 2d 846 (App. Term, 2d Dep’t 1989) ......................................... 16 People v. Naim, 46 Misc. 3d 150(A) (App. Term, 1st Dep’t 2015) ..................................... 13, 15 People v. Proscia, 49 Misc. 3d 127(A) (App. Term, 1st Dep’t 2015) ..................................... 13, 17 People v. Rodriguez, 135 A.D.3d 587 (1st Dep’t 2016) .............................................................. 26 People v. Salgado, 27 A.D.3d 71 (1st Dep’t 2006) .................................................................. 25 People v. Santos, 68 N.Y.2d 859 (1986) ................................................................................ 19 People v. Sibblies, 22 N.Y.3d 1174 (2014) (Lippman, C.J., concurring) ................................ passim People v. Stirrup, 91 N.Y.2d 434 (1998) ................................................................................ 25, 26 People v. Sullivan, 44 Misc.3d 1227(A), (Sept. 8, 2014) ......................................................... 26 People v. Terry, 225 A.D.2d 306 (1st Dep’t 1996) .............................................................. 13 People v. Wrotten, 14 N.Y.3d 33 (2009) .................................................................................. 4 U.S. ex rel. Frizer v. McMann, 437 F.2d 1312 (2d Cir. 1971) (en banc) .................................................... 3 Zedner v. U.S., 547 U.S. 489 (2006) ................................................................................... 5 vi Other Authorities 5 N.Y.Prac., Evidence in New York State and Federal Courts § 3:2 ............. 21 5 Wayne R. LaFave, et al., Crim. Proc. § 18.3(c) (4th ed.) ............................ 5 Stephanie Clifford, For Victims, an Overloaded Court System Brings Pain and Delays, N.Y. Times (Jan. 31, 2016) ................................................... 6 Criminal Court of the City of New York, 2014 Annual Report 17, https://www.nycourts.gov/COURTS/nyc/ criminal/cc_annl_rpt_2014.pdf .................................................................. 7-8 Examining Speedy Trial in New York City Criminal Courts: Hearing Before the New York City Council Committee on Courts and Legal Services, Written Comments of the Bronx Defenders 3 (Feb. 29, 2016), http://legistar.council.nyc.gov/LegislationDetail.aspx?ID= 2572156&GUID=07B0337E-E90C-47E1-84FB- 8FAE47C950FE&Options=&Search= ...................................................... 6-7 William Glaberson, In Misdemeanor Cases, Long Waits for Elusive Trials, N.Y. Times (Apr. 30, 2013) ....................................................................... 8 Jennifer Gonnerman, Before the Law, The New Yorker (Oct. 6, 2014) ........ 9, 25 Mem. of State Executive Dep’t, Crime Control Council, 1972 N.Y. Sess. Laws, 3259 (McKinney) ............................................................................ 5 Rebecca Davis O’Brien, New York City Courts Resolve 42% of Long-Term Cases at Rikers Island, Wall St. J. (June 17, 2015) ................................... 9, 10 Press Release, Office of the Mayor of NYC, Mayor de Blasio and Chief Judge Lippman Announce Justice Reboot, an Initiative to Modernize the Criminal Justice System (Apr. 14, 2015), www1.nyc.gov/office-of-the- mayor/news/235-15/mayor-de-blasio-chief-judge-lippman-justice-reboot- initiative-modernize-the ............................................................................. 9, 10 Readiness, MacMillan English Dictionary, www.macmillandictionary.com/us/dictionary/american/readiness ........... 15 vii Ready, Oxford English Dictionary (3d ed. 2008) ........................................... 15 Report of the Administrative Board of the Judicial Conference of the State of New York 14 (1972) .............................................................................. 4 Report of the Administrative Board of the Judicial Conference of the State of New York 14 (1973) .............................................................................. 4 Rick Rojas, New York City to Relax Bail Requirements for Low-Level Offenders, N.Y. Times (July 8, 2015), http://nyti.ms/1UAFCSi .............. 10 Michael Schwirtz & Michael Winerip, Kalief Browder, Held at Rikers Island for 3 Years Without Trial, Commits Suicide, N.Y. Times (June 8, 2015) .......................................................................................................... 9 Joel Stashenko, DiFiore Pledges “Self-Critical” Analysis of OCA Operations, N.Y.L.J. (Feb. 9, 2016), http://www.newyorklawjournal.com/id=1202749162589/DiFiore- Pledges-SelfCritical-Analysis-of-OCA-Operations .................................. 10 Unified Court System, The Bronx Criminal Division: Merger After Five Years 31 (2009), https://www.nycourts.gov/publications/pdfs/BronxReport11-09.pdf ....... 7 Unified Court System, Press Release, State Court System Reports Dramatic Cut in Bronx Felony Case Inventory, Announces Plan to Slash the Borough’s Misdemeanor Backlog and Names New Bronx Appointment, (Dec. 11, 2013), http://www.nycourts.gov/press/PDFs/PR13_14a.pdf .... 6, 7 THE BRONX DEFENDERS’ INTEREST IN THIS CASE The Bronx Defenders (“BxD”) is a nonprofit provider of innovative, holistic, client-centered criminal defense, family defense, civil legal services, and social work support to indigent people in the Bronx. The BxD staff of over 200 advocates represents approximately 35,000 individuals each year and reaches hundreds more through outreach programs and community legal education. Since its inception, BxD has been a leading voice for court reform in the Bronx. In fall 2012, BxD launched the Fundamental Fairness Project to address the ways in which the Bronx’s beleaguered criminal justice system has itself become a form of punishment for thousands of people brought through the courthouse doors every year. Through in-court advocacy, data collection, impact litigation, and media campaigns, BxD’s Fundamental Fairness Project aims to improve the administration of justice by making interactions with the courts less onerous, more efficient, and more meaningful for Bronx residents. BxD has filed amicus curiae briefs in numerous cases involving criminal justice and civil rights issues. PRELIMINARY STATEMENT Every day, New Yorkers like James Brown take time away from work, school, and child-care obligations to appear for trial dates—only to be told, “not today.” The reasons for postponing trials may vary but the effect is the same: 2 throughout New York City, and particularly in the Bronx, each time the People state not ready, defendants must wait weeks or even months for their next trial date. Such lengthy delays come with considerable costs. Although innocent until proven guilty, defendants waiting for trial carry with them the weight of an unresolved criminal charge, potentially jeopardizing their housing, jobs, immigration status, or even the custody of their children. Unsurprisingly, many defendants yield to the pressures imposed by lengthy waits for trial, accepting guilty pleas they might have rejected were a timely trial not such a remote possibility. Mr. Brown’s case gives this Court an important opportunity to bring much needed speed and predictability to pretrial criminal practice by restoring the promise of New York’s statutory ready rule, C.P.L. § 30.30 (“§ 30.30”). Over the forty years since its passage, this valuable check against prosecutorial inaction has been eroded by the intermediate appellate courts, to the detriment of the accused. While court delay will not be solved overnight, this Court can substantially improve the administration of justice by reinvigorating § 30.30 and reversing the Appellate Division’s decision below. 3 BACKGROUND Though the Legislature adopted § 30.30 in 1972 to reduce widespread delays in the disposition of criminal cases across New York State, the statute has fallen far short of its goal: excessive delays continue to plague the State’s criminal courts, particularly in New York City and most especially in the Bronx. Such delays not only overburden the criminal justice system by increasing the State’s pretrial detainee population, but also undermine public confidence in the courts and destabilize the lives of the defendants and victims they serve. I. History and Purpose of § 30.30 Section 30.30 was enacted in the early 1970s to curb delays in criminal proceedings across New York that were, even then, seen as egregious. The State’s criminal courts reached a crisis point in January 1971, when the Second Circuit Court of Appeals registered alarm that “there were 2,899 persons accused of felon[ies] in New York State who had been held in jail three months or more awaiting disposition of the charges against them” and urged the State to “fashion a rule which will require standards of performance designed to guarantee speedy trials in state cases.” U.S. ex rel. Frizer v. McMann, 437 F.2d 1312, 1314, 1316 (2d Cir. 1971) (en banc). This Court took notice of the decision just two weeks later, both by acknowledging the “acute public problem” of court delay and making clear the State judiciary’s obligation to act. See People v. Ganci, 27 4 N.Y.2d 418, 423-24 (1971) (“[I]f we can expedite the movement of cases and minimize delay by improvement of judicial procedures and techniques, we should set about to do it.”). Shortly after Ganci, the Administrative Board of the Judicial Conference promulgated proposed speedy trial rules “to assure more prompt trial and disposition of criminal cases.”1 Excluding homicide cases and periods of delay caused by defendants,2 these rules would have required the dismissal of cases that were not brought to trial within six months of arrest.3 Inspired by the “compelling necessity . . . to minimize trial delays” observed in Ganci, 27 N.Y.2d at 425, these rules were also fully within the New York courts’ inherent powers to “fashion necessary procedures consistent with constitutional, statutory, and decisional law.” See People v. Wrotten, 14 N.Y.3d 33, 37 (2009). To allow the State time to allocate the necessary funds, implementation of the proposed speedy trial rules was delayed until 1972.4 1 Report of the Administrative Board of the Judicial Conference of the State of New York 14 (1972). 2 Id. at 233-34. 3 Id. at 14-15. The rule also required the release of defendants who were not tried within three months of arrest. 4 Report of the Administrative Board of the Judicial Conference of the State of New York 14 (1973). At the same time, in Barker v. Wingo, 407 U.S. 514 (1972), the U.S. Supreme Court confronted the speedy-trial guarantee contained within the Sixth Amendment of the Constitution. Noting the “amorphous quality” of the constitutional guarantee, the Court nonetheless observed 5 Shortly before the judiciary’s rules were scheduled to take effect, however, the Legislature adopted § 30.30. While similarly intended to “promote prompt trials for defendants in criminal cases,”5 § 30.30 differs from speedy trial statutes adopted in other states, the “great majority” of which “declare that the trial must commence within a specified period of time from a specified event.” 5 Wayne R. LaFave, et al., Crim. Proc. § 18.3(c) (4th ed.). Instead, § 30.30 adopts a prosecutorial readiness rule, requiring only that prosecutors announce and maintain their readiness for trial within specified time periods, subject to myriad tolling provisions. Although this Court has called it “glaringly apparent that the main thrust of the CPL 30.30 is to require the prosecution to be prepared within six months in all but the unusual case,” People v. Berkowitz, 50 N.Y.2d 333, 349 (1980), the statute has fallen short of its purpose, as dispositions within six months are the exception, not the rule. that the “fundamental” right to a speedy trial protects not only individuals, but also “societal interest[s].” Id. at 519–22 (noting incarceration costs, lost wages, and “deplorable” prison conditions that hinder rehabilitation); see also Zedner v. U.S., 547 U.S. 489, 501 (2006) (noting societal interest in “preventing extended pretrial delay from impairing the deterrent effect of punishment”). 5 See Mem. of State Executive Dep’t, Crime Control Council, 1972 N.Y. Sess. Laws, 3259 (McKinney). 6 II. Today, Defendants in New York City Continue to Face Tremendous Court Delays Despite § 30.30’s enactment forty years ago, New York City’s criminal courts continue to suffer from excessive delays, and interminable waits for trial define the experiences of people accused of crimes, crime victims, prosecutors, defense attorneys, and judges alike.6 These delays are particularly acute in the community served by BxD, where case processing times regularly dwarf those in New York City’s other boroughs. Notwithstanding that substantially fewer misdemeanor cases were filed in the Bronx in 2013 than in Kings County or New York County, the lion’s share of the 3,975 misdemeanor cases that had been pending for longer than one year in the New York City Criminal Court as of December 2013 came from the Bronx— 2,106, or approximately 53%.7 No other borough had more than 657 such cases.8 6 In a recent article, the New York Times exposed the often devastating consequences that result from the tremendous backlog of cases in New York City’s criminal courts. See Stephanie Clifford, For Victims, an Overloaded Court System Brings Pain and Delays, N.Y. Times (Jan. 31, 2016), http://www.nytimes.com/2016/02/01/nyregion/for-victims-an-overloaded-court- system-brings-pain-and-delays.html. 7 See Unified Court System, Press Release, State Court System Reports Dramatic Cut in Bronx Felony Case Inventory, Announces Plan to Slash the Borough’s Misdemeanor Backlog and Names New Bronx Appointment, (Dec. 11, 2013) (“UCS Press Release”), http://www.nycourts.gov/press/PDFs/PR13_14a.pdf (revealing that, in 2013, 56,000 misdemeanor cases were filed in the Bronx, whereas 75,000 such cases were filed in Manhattan, and 72,000 were filed in Brooklyn). More recent data shows that at the beginning of 2016, there were 2,378 misdemeanor cases that had been pending for over one year, and 538 cases that had been pending for over two years. Examining Speedy Trial in New York City Criminal Courts: Hearing Before the New York City Council Committee on Courts and Legal Services, Written Comments of the Bronx Defenders 3 (Feb. 29, 2016), 7 And while misdemeanor cases citywide take an average of 127 days to proceed from arraignment to disposition in the Criminal Court’s All Purpose Parts, cases in the Bronx take an average of approximately 180 days, almost 30% longer.9 Considering that both § 30.30 and the Standards & Goals set by the judiciary itself contemplate disposition of Class A misdemeanors within 90 days, this means that people charged with misdemeanors in the All Purpose Parts in the Bronx have to wait, on average, twice as long as they should in order to resolve their cases.10 Given these lengthy delays, it is perhaps unsurprising that many misdemeanor defendants who might otherwise assert their trial rights elect instead to plead guilty. Indeed, a misdemeanor defendant waiting for his or her trial will be waiting a very, very long time. Citywide, people charged with misdemeanors in 2014 waited an average of 479 days for disposition after bench trials and 571 days for disposition after jury trials.11 While these delays are already extensive, the http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2572156&GUID=07B0337E-E90C- 47E1-84FB-8FAE47C950FE&Options=&Search=. 8 UCS Press Release. In the Bronx, 14.5% of all pending misdemeanor cases as of December 2013 were over a year old, compared to 4.9% in Manhattan, 5.3% in Brooklyn, and 4.1% in Queens. Id.; see also Criminal Court of the City of New York, 2014 Annual Report 17 (“Annual Report”), https://www.nycourts.gov/COURTS/nyc/criminal/cc_annl_rpt_2014.pdf. 9 Annual Report at 40. 10 Unified Court System, The Bronx Criminal Division: Merger After Five Years 31 (2009), https://www.nycourts.gov/publications/pdfs/BronxReport11-09.pdf. 11 Annual Report at 52. 8 average waits in the Bronx are significantly longer: an average of 642 days for a bench trial and an astounding 827 days—more than two years and three months— for a jury trial to resolve charges that should typically be resolved within three months.12 The case backlogs are so crushing that the Bronx Criminal Court struggles to provide basic due process to thousands of criminal defendants with their liberty at stake.13 III. Defendants Face Grave Collateral Consequences as a Result of Court Backlogs While these delays have become business as usual in New York City’s courts, they are often devastating to the people who endure them. Prolonged prosecutions wreak havoc on the lives of the accused and undermine fundamental principles of due process, particularly for those who are unable to make bail and must await trial while incarcerated. Consider the tragic story of Kalief Browder, who, as chronicled in national media outlets, took his own life at 22 after spending three years on Rikers Island while awaiting trial for allegedly stealing a backpack. During those three years—while the People repeatedly stated “not ready,” asked 12 Id. 13 William Glaberson, In Misdemeanor Cases, Long Waits for Elusive Trials, N.Y. Times (Apr. 30, 2013), www.nytimes.com/2013/05/01/nyregion/justice-denied-for-misdemeanor-cases- trials-are-elusive.html (“[T]hose accused of minor offenses … have all but lost the fundamental guarantee of the American legal system: the right to trial.”). 9 for one-day or one-week adjournments, but received six-week adjournments instead (with only the shorter, actually requested time counting for speedy-trial purposes)—Mr. Browder was frequently confined to a cell 23 hours a day and abused by guards and inmates; he was released only when the prosecutors finally admitted they could not meet their burden of proof and dropped the charges three years after Mr. Browder’s arrest. After multiple failed attempts while incarcerated, Mr. Browder committed suicide just two years later.14 Mr. Browder’s story may be uniquely shocking, but New York City’s own analysis has acknowledged that defendants awaiting trial “are the single biggest contributor” to the swelling population on Rikers Island.15 As of spring 2015, there were 1,427 people incarcerated on Rikers Island for more than one year awaiting trial.16 More than 400 people had been waiting for more than two years, 14 Jennifer Gonnerman, Before the Law, The New Yorker (Oct. 6, 2014), www.newyorker.com/magazine/2014/10/06/before-the-law; see also Michael Schwirtz & Michael Winerip, Kalief Browder, Held at Rikers Island for 3 Years Without Trial, Commits Suicide, N.Y. Times (June 8, 2015), www.nytimes.com/2015/06/09/nyregion/kalief-browder- held-at-rikers-island-for-3-years-without-trial-commits-suicide.html. 15 Press Release, Office of the Mayor of NYC, Mayor de Blasio and Chief Judge Lippman Announce Justice Reboot, an Initiative to Modernize the Criminal Justice System (Apr. 14, 2015) (“NYC Press Release”), www1.nyc.gov/office-of-the-mayor/news/235-15/mayor-de- blasio-chief-judge-lippman-justice-reboot-initiative-modernize-the. 16 Rebecca Davis O’Brien, New York City Courts Resolve 42% of Long-Term Cases at Rikers Island, Wall St. J. (June 17, 2015), www.wsj.com/articles/city-courts-resolve-42-of-long- term-rikers-cases-1434569408. 10 and some defendants had been waiting up to six years.17 While commendable efforts are underway to reduce excessive pretrial incarceration,18 and incremental progress has been made,19 these reforms are neither permanent nor complete solutions. Even when defendants are at liberty pending trial, protracted prosecutions significantly destabilize their lives and the lives of their families, particularly indigent defendants like BxD’s clients. As the Supreme Court warned forty years ago, “inordinate delay between public charge and trial . . . may ‘seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’” Barker v. Wingo, 407 U.S. 514, 537 (1972) (White, J., concurring) (quoting United States v. Marion, 404 U.S. 307, 320 (1971)). These words ring even truer today, with the 17 Id. 18 See, e.g., NYC Press Release; Rick Rojas, New York City to Relax Bail Requirements for Low-Level Offenders, N.Y. Times (July 8, 2015), http://nyti.ms/1UAFCSi; Joel Stashenko, DiFiore Pledges “Self-Critical” Analysis of OCA Operations, N.Y.L.J. (Feb. 9, 2016), http://www.newyorklawjournal.com/id=1202749162589/DiFiore-Pledges-SelfCritical-Analysis- of-OCA-Operations. 19 See Rebecca Davis O’Brien, New York City Courts Resolve 42% of Long-Term Cases at Rikers Island, Wall St. J. (June 17, 2015), www.wsj.com/articles/city-courts-resolve-42-of-long- term-rikers-cases-1434569408 (noting 42% reduction of pretrial detainees with cases pending more than one year). 11 ease of accessing public criminal records casting an even harsher spotlight on those accused. Beyond the physical and psychological toll exacted by these delays, each postponement brings with it the potential for another missed day of work, school absence, rescheduled medical appointment, financial hardship, or child-care emergency. Criminal defendants not only risk their wages every day they appear in court, but repeated absences inevitably strain relationships with employers. Routinely, defendants are asked to arrive at court by 9:30am but may have to wait until 4:30pm for their perfunctory court appearance, thereby missing an entire workday. Defendants working in the public sector or in jobs requiring state-issued licenses are especially vulnerable, as an open case may lead to reduced hours, suspension without pay, or even termination. Moreover, because potential employers may hesitate before hiring an applicant whose background check reveals a pending criminal case, unemployed defendants struggle to find work while they await trial. If defendants happen to miss a court date, a warrant may be issued for their arrest. Faced with such harms during these oppressive delays, many defendants with valid factual and legal defenses are forced to choose between accepting a guilty plea or waiting years for a trial. Indeed, cases like Mr. Browder’s, where the People ultimately dropped all charges, raise the troubling 12 question of the extent to which prosecutors may accept guilty pleas in the face of serious doubts about their ability to meet their burden of proof. IV. The Failure to Enforce § 30.30’s Readiness Requirement Has Rendered the Statute Ineffective to Combat Court Delay Given that criminal cases in New York City courts regularly take substantially longer than the time periods contemplated by § 30.30, the “ready” rule’s minimal influence on the administration of justice is evident. Despite the apparently strict standard of diligence placed on prosecutors, the statute is no longer an effective way of ensuring the speedy disposition of criminal cases. Most notably, the statute fails to provide a clear standard for prosecutorial “readiness,” an omission that has led to years of litigation and the erosion of the protections meant to be afforded by the provision. In the absence of a clear statutory definition of “ready,” intermediate appellate courts have over time replaced this Court’s “actual readiness” standard, enunciated in People v. England, 84 N.Y.2d 1, 4 (1994), with a more lenient “technical readiness” test that allows the People to stop the speedy-trial clock by stating their readiness on some counts in an accusatory instrument, even if they have no intention of proceeding to trial because they are not ready with respect to other counts. In more than ten cases, trial courts have dismissed charges after the defendant’s wait for trial has indisputably exceeded the periods provided in § 30.30, only to be reversed on the basis that the People had supposedly been 13 “technically positioned” for trial, at least with respect to some counts. See, e.g., People v. Cruz, 111 A.D.2d 725 (1st Dep’t 1985).20 From the perspective of the person waiting for a trial—who is told that the People are “ready,” but that trial may nevertheless be years away because the People are still preparing their case— the People’s readiness is only “readiness in the air.” People v. Sibblies, 22 N.Y.3d 1174, 1178 (2014) (Lippman, C.J., concurring). As a result of these developments, the People are, broadly speaking, almost always “ready” on paper, but rarely ready in practice.21 Without § 30.30 forcing prosecutors to investigate, evaluate, and prioritize their cases, defendants frequently find their cases adjourned continuously. And as each adjournment fills yet another spot on a trial calendar, adjournments are pushed out further and further, and the congestion is compounded by a trial calendar filled with supposed trial dates that will instead yield only more requests for adjournments. Meanwhile, new charges are continually brought into already overburdened courts, and delay begets more delay. 20 See also People v. Proscia, 49 Misc. 3d 127(A) (App. Term, 1st Dep’t 2015); People v. Correa, 49 Misc. 3d 127(A) (App. Term, 1st Dep’t 2015); People v. Naim, 46 Misc. 3d 150(A) (App. Term, 1st Dep’t 2015); People v. Doe, 46 Misc. 3d 140(A) (App. Term, 1st Dep’t 2015); People v. Ausby, 46 Misc.3d 126(A) (App. Term, 1st Dep’t 2014); People v. Cates, 48 Misc. 3d 135(A) (App. Term, 1st Dep’t 2015); People v. Castro, No. 02-239, 2001 WL 1691976 (App. Term, 1st Dep’t Dec. 31, 2001); People v. Terry, 225 A.D.2d 306 (1st Dep’t 1996); People v. Gutter, 222 A.D.2d 330 (1st Dep’t 1995). 21 See Sibblies, 22 N.Y.3d at 1178. 14 ARGUMENT While § 30.30 has become an ineffective tool to prevent trial delay, Mr. Brown’s case presents this Court with an important opportunity to reverse the incremental erosion of the statute by reaffirming its plain language and the principles underlying the readiness requirement. First, readiness must mean what it says: actual, present willingness and ability to go to trial. Second, the burden should be placed with the People to show that delays should be excluded from counting toward the § 30.30 clock. Application of these principles will not only result in the dismissal of the charges against Mr. Brown, but also improve the administration of justice by returning the statute to its intended purpose. I. Section 30.30 Requires the People’s Actual Readiness for Trial Section 30.30 provides that a motion to dismiss “must be granted where the People are not ready for trial” within statutorily specified periods. By omitting a definition of “ready” from § 30.30, the Legislature left it to the courts to define the People’s obligation to prepare for trial. This Court has repeatedly done so, unambiguously holding that the People must “demonstrate an actual readiness to proceed with trial at the time they declare readiness.” People v. Chavis, 91 N.Y.2d 500, 506 (1998) (emphasis added); see also England, 84 N.Y.2d at 4; People v. Kendzia, 64 N.Y.2d 331, 337 (1985) (“[T]he prosecutor must make his statement of readiness when the People are in fact ready to proceed.”). Indeed, the statute 15 permits no other interpretation, as the meaning of “ready” is not ambiguous. To be “ready” for something is to have “made all preparations” and “be capable of immediately performing or undergoing what is implied or expressed in the context.”22 In the statutory context, the People are obliged to establish and maintain a condition of “readiness,” which means not just “the state of being ready and able to deal with what might or will happen” but also “being willing to do something.”23 The effective operation of § 30.30 depends on a meaningful “readiness” standard, as anything less would fail to effectuate the statute’s purpose of requiring the People to prepare for trial in a timely fashion. Indeed, this Court has held that “readiness” requires the People to “have done all that is required of them to bring the case to a point where it may be tried.” England, 84 N.Y.2d at 4. Despite the “actual readiness” requirement, lower courts have gutted the “readiness” standard by adopting a “technical” or “partial” readiness standard. For instance, the Appellate Term, First Department frequently finds that the People are “ready” for trial because they are merely “technically positioned” for trial on some counts in an accusatory instrument and thus only partially ready for trial. See, e.g., People v. Naim, 46 Misc. 3d 150(A). The doctrine of “technical readiness” finds 22 Ready, Oxford English Dictionary (3d ed. 2008) (emphasis added). 23 Readiness, MacMillan English Dictionary, www.macmillandictionary.com/us/dictionary/american/readiness (emphasis added). 16 no support in the statute—which speaks of readiness for “trial,” not on individual counts of a charging instrument—and has never been adopted by this Court. Nor should it, as it completely inverts the long-standing requirement of “actual readiness to proceed with trial at the time [the People] declare readiness.” Chavis, 91 N.Y.2d at 506 (emphasis added). Similarly, the doctrine of so-called “partial conversion” has been used to erode the “actual readiness” rule. It has long been the case that the People cannot be “ready for trial” until they have converted a misdemeanor complaint into an information. People v. Colon, 59 N.Y.2d 921 (1983). Yet some courts have repeatedly held that the People can satisfy § 30.30’s requirements with respect to some counts simply because the People have converted and stated ready on those counts even though they have not converted nor stated ready on others.24 These courts—relying on the faulty premise that prosecutors can try individual counts of an accusatory instrument in piecemeal fashion—hold that speedy-trial time must be applied on a count-by-count basis, such that the speedy-trial clock accrues only with respect to unconverted counts.25 This reduces the “actual readiness” requirement to nothing more than the statutorily required task of conversion. 24 See, e.g., People v. Brooks, 190 Misc. 2d 247 (App. Term, 1st Dep’t 2001); People v. Minor, 144 Misc. 2d 846 (App. Term, 2d Dep’t 1989). 25 See People v. Lomax, 50 N.Y.2d 351, 356 (1980) (noting that “there can be only one criminal action for each set of criminal charges brought against a particular defendant”). 17 Like “technical readiness,” the partial conversion doctrine honors form over substance and “prevent[s the accused] from availing herself” of the People’s supposed readiness because defendants cannot ask for trial on some counts before the People are ready on all counts. See Sibblies, 22 N.Y.3d 1174 at 1178 (Lippman, C.J., concurring). The defendant in these circumstances is doubly harmed, both as a legal matter (because no matter how long the defendant must await trial, the likelihood of having these counts dismissed under § 30.30 is effectively nil) and due to the collateral consequences of an essentially open-ended wait for trial. See id. As Chief Judge Lippman put it, § 30.30 requires the People to establish their readiness “on the ground,” but readiness “in the air” is frequently all that the People provide. Sibblies, 22 N.Y.3d at 1178; see also Chavis, 91 N.Y.2d at 500. This type of “merely mouthing th[e] words” “ready for trial” is contrary to § 30.30’s stated purpose to “promote prompt trials for defendants in criminal cases,” and precisely what this Court rejected in England. 84 N.Y.2d at 5. Moreover, as a practical matter, the People’s time to prepare for trial (and thus the time the defendant must wait) is typically determined by reference to the most serious count in an accusatory instrument. As such, even in cases where the most serious count is ultimately dismissed on speedy-trial grounds, a defendant may still be made to stand trial on other counts, months or even years outside the time limits contained in § 30.30, if the People declared their readiness on these counts within the § 30.30 period. See, e.g., People v. Proscia, 49 Misc. 3d 127(A) (reinstating information and ordering trial on misdemeanor count, following dismissal of felony counts on speedy-trial grounds). 18 By making clear that “readiness” requires the People to be presently prepared and willing to begin trial on all counts, this Court can implement the Legislature’s purpose in enacting § 30.30, simplify the work of trial courts, and provide much-needed predictability to both defendants and the People. Specifically, in order to state ready for purposes of § 30.30, the People must be actually willing and able to commence trial at that moment, including having converted all counts charged in the accusatory instrument. If the People state ready without meeting these criteria, it necessarily follows that their statement is an “empty declaration” that cannot toll the speedy-trial clock. See id. Such a formulation of readiness is squarely grounded in this Court’s precedent and the principle that § 30.30 time should be charged to the People when delays are caused by factors within their control. II. The People Bear the Burden of Excluding Periods of Delay Courts have also misapplied § 30.30 by imposing unreasonable and improper procedural burdens on criminal defendants. Although this Court has repeatedly held that the People bear the burden of excluding time under § 30.30, lower courts have erroneously moved that burden back onto criminal defendants by requiring them to rebut a presumption that the People’s statements of readiness 19 are truthful and accurate.26 Not only does this approach misconstrue this Court’s precedent, but it contradicts the purpose of § 30.30 and, as demonstrated in Mr. Brown’s case, imposes a nearly insurmountable obstacle to dismissal on speedy- trial grounds. In moving to dismiss on § 30.30 grounds, the defendant carries the initial burden of showing that the unexcused delay exceeds the time limit set by § 30.30(1). People v. Santos, 68 N.Y.2d 859, 861 (1986). Once the defendant makes this showing, the burden shifts to the People to show that specific periods are excludable and thus do not count against the time allotted for the People to prepare for trial. Id. The People can exclude time either by establishing an exclusion under § 30.30(4) or by showing the People were not responsible for the delay. See, e.g., § 30.30(4) (calculation of § 30.30 clock should exclude, among other periods, “continuance[s] granted by the court at the request of, or with the consent of, the defendant or his counsel”); see also Kendzia, 64 N.Y.2d at 337-38 (“[T]he People are not to be penalized if court congestion causes a trial date to be set beyond the applicable time period of CPL 30.30.”). If the People’s § 30.30 clock is set to expire during an adjournment, and the People become ready, they may file an off-calendar statement of readiness that allows them “to declare 26 See Amicus Br. of The Legal Aid Society at 20-22 (discussing how lower courts have “unilaterally erected” presumptions that statements of readiness were (i) made in good faith, and/or (ii) truthful and accurate, when the Court of Appeals has never made any such holding). 20 readiness in a timely manner, even where the statutory period expires before the next court date.” Sibblies, 22 N.Y.3d at 1177. Although this Court has made clear that “merely mouthing th[e] words” in a statement of readiness is insufficient, trial courts cannot always easily tell whether a statement of readiness is accurate and thus sufficient to exclude time. This Court addressed the question in Sibblies, but its evenly split decision has created more confusion than clarity. In that case, this Court unanimously concluded that an off- calendar statement of readiness was ineffective to toll the §30.30 clock after the People stated not ready at the next court appearance.27 While both opinions agreed that the Appellate Division should be reversed and the charges dismissed, the Court was unable to agree on a rule for when a statement of readiness will not stop the clock. Mr. Brown’s case gives this Court an opportunity to resolve the core disagreement between the concurrences in Sibblies: which party bears the burden of establishing that time should be excluded by a statement of readiness. Under Chief Judge Lippman’s concurrence, the People bear the burden of showing that 27 Sibblies concerned a misdemeanor prosecution for assault in the third degree, arising out of an altercation during a traffic stop that injured an officer. To toll the speedy-trial clock, during an adjournment the People filed an off-calendar statement of readiness and supporting deposition. At the next scheduled appearance, however, the People announced they were not ready because they were “continuing to investigate and are awaiting medical records” of the officer. Id. at 1176. 21 time should be excluded: when the People state not ready after making an off- calendar statement of readiness, they will be charged with the time unless they establish “an exceptional fact or circumstance” justifying the change in readiness. Id. at 1175, 1178 (defining “an exceptional fact or circumstance” by reference to § 30.30(3)(b)). Judge Graffeo’s concurrence, on the other hand, has been interpreted as placing on the defendant the burden of showing ‘“proof that the readiness statement did not accurately reflect the People’s position.’” Id. at 1180 (quoting People v. Carter, 91 N.Y.2d 795, 799 (1998)). This Court should resolve this uncertainty by keeping the burden squarely on the People, consistent with Chief Judge Lippman’s approach. That is the only approach that respects this Court’s long-standing holding that it is the People’s burden to establish that time should be excluded from the § 30.30 clock once the defendant makes a prima facie showing that time has expired. There is no reason the burden should shift back onto the defendant simply because the People seek to exclude time by a statement of readiness rather than by the application of § 30.30(4). Moreover, since the § 30.30 inquiry turns on whether the People have timely prepared for trial, it is the People—not the defendant—who know whether they are ready and can provide corroborating evidence. See generally 5 N.Y.Prac., Evidence in New York State and Federal Courts § 3:2 (“The party who is likely to have ‘inside’ knowledge about particular facts, . . . is often the party burdened with 22 proving such facts.”). As a matter of sound adjudicative design, Chief Judge Lippman’s concurrence properly places the burden on the People.28 This approach is consistent with the statutory structure and the legislative purpose underlying § 30.30. As described above, § 30.30 is structured as a prosecutorial readiness statute: it does not guarantee trial within a particular period or impose requirements upon the court. Rather, it imposes a duty on the People to be ready for trial within a specific time, and allows for exclusions only if they do not implicate the People’s readiness. Given that the Legislature placed on the People the burden of preparing for trial in a speedy and timely fashion, placing the burden on defendants to show that the People were not actually ready contradicts the statute. Judge Graffeo’s concurrence likewise supports placing this burden on the People; indeed, Judge Graffeo held that when the People change from ready to not ready without explanation, the prior readiness statement will not toll the speedy- trial clock. See Sibblies, 22 N.Y.3d. at 1181. However, many lower courts, including the Appellate Division here, have all but ignored Judge Graffeo’s 28 Chief Judge Lippman’s concurrence would also adopt a substantive test for when the People can meet their burden and exclude time despite a change in readiness, requiring that the People show “exceptional circumstances” for the change. While this may be the appropriate standard, see Amicus Br. of The Legal Aid Society at 27, it is ultimately less important to the efficient administration of § 30.30 than the basic principle that the People should bear the burden of showing compliance with the statute. 23 reasoning, as well as her conclusion that the People’s initial statement of readiness was illusory and thus ineffective to stop the speedy-trial clock, and have fixated instead on dicta referring to the People’s supposed entitlement to a presumption of truthfulness and accuracy. Taken to its logical ends, this approach could render § 30.30 a dead letter. The approach taken by the Appellate Division demonstrates the difficulties created by presuming the People’s statement to be accurate and placing the burden on the defendant to overcome that presumption. As an initial matter, Mr. Brown has no access to any information that would confirm or disprove the People’s readiness.29 Moreover, although in Sibblies Judge Graffeo found it “significant[] [that] the prosecutor gave no explanation for the change in circumstances between the initial statement of readiness and the subsequent admission that the People were not ready to proceed,” id. (emphasis added), the Appellate Division in this case dismissed as “mere[] speculat[ion]” Mr. Brown’s claim that the off-calendar statement was illusory and found the change in the People’s readiness to be “insufficient to rebut the presumption that the certificate of readiness was accurate 29 The People concede that “a pattern of filing certificates of readiness followed by in-court declarations of unreadiness” could “rais[e] questions” about whether a statement is illusory. See Br. of Resp’t at 42 & n.16. While such “patterns” have unfortunately become commonplace, see Amicus Br. of The Legal Aid Society at 5-8, this approach is even more restrictive than Judge Graffeo’s concurrence; even Sibblies did not involve any such “pattern” of changed readiness, and yet the Sibblies Court unanimously agreed that the prior readiness statement was illusory. 24 and truthful.” A-8-9.30 Indeed, the sole distinguishing fact between the adjournments at issue in Sibblies and Mr. Brown’s case is that the Sibblies trial court knew why the People were no longer ready at the first appearance following the off-calendar statement of readiness, presumably because the People volunteered that they were awaiting medical records.31 See Sibblies, 22 N.Y.3d at 1175–76 (Lippman, C.J., concurring). Mr. Brown’s right to a speedy trial should not be subject to what the People may have elected to disclose regarding the status of their case. The lower court’s decision and those like it tacitly abrogate this Court’s settled precedent that “the burden rests on the People to clarify, on the record, the basis for the adjournment so that on a subsequent CPL 30.30 motion the court can determine to whom the adjournment should be charged.” People v. Liotta, 79 30 While it is possible that “the prosecutor here may well have offered a contemporaneous record explanation for the People’s unreadiness on August 8 had there been a defense attorney in court to hear it,” see Br. of Resp’t at 42 n.15, defense counsel’s presence or absence is irrelevant for speedy-trial purposes; “CPL 30.30, . . . relates to prosecutorial readiness, [and] is not dependent in any way on whether the defendant has expressed his readiness for trial.” People v. Hamilton, 46 N.Y.2d 932, 933-34 (1979) (emphasis added). 31 The People attempt to distinguish Sibblies on the ground that “the sort of record evidence that Judge Graffeo found to have rebutted the presumption of validity in Sibblies was conspicuously absent in this case.” See Br. of Resp’t at 33. But this Court has never held that the application of § 30.30 varies by the type of evidence the People anticipate using at trial, and the fact that the People were ultimately unable to adduce any evidence beyond witness testimony in Mr. Brown’s case does not mean that they were not continuing to seek such evidence when the Certificate of Readiness was filed on July 17, 2007. 25 N.Y.2d 841, 843 (1992).32 In cases where the People state “ready” and subsequently state “not ready” without explanation, Liotta and its progeny counsel that the time should be charged to the People. See, e.g., People v. Stirrup, 91 N.Y.2d 434, 440 (1998); People v. Salgado, 27 A.D.3d 71, 75 (1st Dep’t 2006). A presumption that the People’s readiness statement is truthful and accurate has the effect of rewarding the People for their silence, which is exactly what the lower courts have done, most egregiously in Kalief Browder’s case: while the People filed a “Notice of Readiness” shortly after his indictment, the People subsequently stated not ready, with no explanation, on at least eight occasions over the course of nearly three years before the case was ultimately dismissed.33 Under either Sibblies concurrence, most, if not all, of that time would have been charged to the People.34 32 The one possible exception to the broader trend of requiring the People to bear the burden of explaining the reasons for adjournments, Carter, 91 N.Y.2d 795, does not compel a different result. Noting the “unusual factual circumstances” of the case, the Carter Court held that a pre- arraignment statement of readiness can be valid if filed at least two days before the end of the § 30.30 time. In doing so, the Court noted that “[i]n the absence of proof that the readiness statement did not accurately reflect the People’s position or that the mailing [of notice to the unavailable defendants] was made in bad faith,” the People’s statement of readiness would toll the clock. Id. at 799. But Carter addressed whether a pre-arraignment statement of readiness was per se invalid, not how trial courts should address contested statements of readiness. 33 Jennifer Gonnerman, Before the Law, The New Yorker (Oct. 6, 2014), www.newyorker.com/magazine/2014/10/06/before-the-law. 34 The People complain that defendants “disparage[] the prosecutor’s professionalism and good faith” by challenging the validity of certificates of readiness, see Br. for Resp’t at 38, but placing on the prosecutor the “burden [to] ensur[e]” an appropriate record should the People’s 26 Indeed, many lower courts have adopted an erroneous application of Sibblies, making this Court’s intervention all the more necessary. See People v. Sullivan, 44 Misc.3d 1227(A), at *2 (Crim. Ct. N.Y. Cty.) (Sept. 8, 2014) (holding that an “earlier statement of readiness will only be deemed illusory if the record contains proof that the People were not actually ready when they said they were”); see also People v. Farrell, 47 Misc.3d 524 (Crim. Ct. Queens Cty. 2015); People v. McLeod, 44 Misc.3d 505, 509 (Crim. Ct. N.Y. Cty. 2014) (denying defendant’s § 30.30 motion because “the record does not contain ‘proof that the readiness statement did not accurately reflect the People’s position’”). Not all lower courts, however, have hewed to this interpretation. See People v. Mariner, 2016 NY Slip Op 50994(U) (App. Term, 1st Dep’t July 6, 2016) (finding presumption of accuracy rebutted by “the lack of any satisfactory explanation” for in-court declarations of unreadiness after filing statement of readiness); People v. Guirola, 51 Misc.3d 13 (App. Term, 2d Dep’t, 2, 11, & 13 Jud. Dists. 2016) (dismissing under either Sibblies concurrence). Indeed, while the Appellate Division, First Department took a similar position below, it took a contrary position earlier this year. See People v. Rodriguez, 135 A.D.3d 587, 587-88 (1st Dep’t 2016) readiness later be disputed, see Stirrup, 91 N.Y.2d at 440, is entirely consistent with the prosecutor’s unique responsibilities “‘as an officer of the court.’” See Br. for Resp’t at 39 (citing People v. Hameed, 88 N.Y.2d 232, 238 (1996)). This is not a question of good faith but of adequate records. 27 (reversing defendant’s conviction in part because “the People provided no explanation why, after filing and serving the certificate of readiness . . . they answered not ready at the next court date” and asserting that “the burden rests on the People to clarify, on the record, the basis for the adjournment”). Under either Sibblies concurrence—whether the People bear the burden of excluding time or whether the People’s failure to explain the change in circumstances rebuts the presumption of truthfulness and accuracy—the People should not be able to remain silent and still exclude time. The Appellate Division ignored this unifying principle of the Sibblies concurrences when it rejected Mr. Brown’s § 30.30 argument for offering nothing more than “mere[] speculat[ion]” as to the People’s readiness, even though it was the People’s silence that necessitated such speculation. Unless the People volunteer their reasons for no longer being ready, defendants will be left with an empty record and an insurmountable burden. Accordingly, the People should bear the burden of their silence. CONCLUSION Though the forty years since its passage have seen the lower courts erode the statutory protection of § 30.30, the Court today has the opportunity to reverse that trend and restore § 30.30 to its former promise. For the foregoing reasons, The Bronx Defenders respectfully requests that the Court reverse the decision of the Appellate Division and dismiss Mr. Brown's indictment. Dated: New York, New York September 9, 20 16 Respectfully submitted, CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 T: 212-225-2000 F: 212-225-3999 amackinnon@cgsh.com Attorneys for The Bronx Defenders Amicus Curiae 28 --