The People, Appellant,v.Earl Canady, Respondent.BriefN.Y.November 14, 2016COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE S'l'ATE OF' NEW YORK, Appellant, -against- EARL CANADY, Defendant-Respondent. To be argued by: SETH M. LIEBEr~lliN (15 Minutes) Kings County Docket Number 2011KN009074 APL-2016-00107 APPELLANT'S REPLY BRIEF LEONARD JOBLOVE SETH M. LIEBERMAN Assistant District Attorneys of Counsel Telephone: (718) 250-2516 Facsimile: (718) 250-2549 October 14, 2016 ERIC GONZALEZ ACTING DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN, NEW YORK 11201-2908 (718) 250-2000 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ............................................ i ARGUMENT - THE PEOPLE DID NOT VIOLATE DEFENDANT'S STATUTORY RIGHT TO A SPEEDY TRIAL. . ........................................ 1 A. Introduction .......................................... 1 B. Only 6 Days (March 2 to March 8, 2011) of the 47 Days from March 2 to April 18, 2011 Were Chargeable to the People .............................. 9 C. Only 13 Days (the 7 days from November 9 to November 16, 2011, and the 6 days from January 12 to January 18, 2012) of the 106 Days from November 9, 2011 to February 23, 2012 Were Chargeable to the People ................... 25 D. The Proposed Exceptional Circumstance Rule Set Forth in Chief Judge Lippman's Concurring Opinion in People v. Sibblies, 22 N.Y.3d 1174 (2014), Should Not Be Adopted ........................ 28 E. Conclusion ........................................... 35 CONCLUSION - FOR THE REASONS STATED IN THIS BRIEF AND IN THE PEOPLE'S MAIN BRIEF, THE ORDER OF THE APPELLATE TERM SHOULD BE REVERSED AND THE INFORMATION SHOULD BE REINSTATED ......... 36 TABLE OF AUTHORITIES CASES Deleon v. New York City Sanitation Dep't, 25 N.Y. 3d 1102 (2015) ..... People v. Bacquie, 52 Misc. 3d 505 (Sup. Ct. Queens Cty. 2016) .. People v. Berkowitz, 50 N.Y.2d 333 (1980) People v. Carter, 91 N.Y.2d 795 (1998). People v. Chavis, 91 N.Y.2d 500 (1998). People v. DeJesus, 69 N.Y.2d 855 (1987) People v. Goss, 87 N.Y.2d 792 (1996). People v. Jaoui, 52 Misc. 3d 769 (Crim. Ct. N.Y. Cty. 2016) . People v. Kendzia, 64 N.Y.2d 331 (1985) People v. Kramer, 92 N.Y.2d 529 (1998). People v. Monegro, 49 Misc. 3d 1202(A), 2015 N.Y. Misc. LEXIS 3411 (Sup. Ct. Bronx Cty. Sept. 23, 2015) People v. Nieves, 67 N.Y.2d 125 (1986) .. People v. Robinson, 47 A.D.3d 847 (2d Dep't 2008) People v. Seepersad, 52 Misc. 3d 400 (Crim. Ct. N.Y. Cty. 2016) ... People v. Sibblies, 22 N.Y.3d 1174 (2014) People v. Sibblies, 98 A.D.3d 458 (1st Dep't 2012), rev'd, 22 N.Y.3d 1174 (2014) .... People v. Sinistaj, 67 N.Y.2d 236 (1986). PAGES 31 6 16 passim passim passim 5 29 31 5 34 passim 16 6, 29 passim 18 9, 24, 31 TABLE OF AUTHORITIES (cont'd) People v. Stirrup, 91 N.Y.2d 434 (1998) People v. Vallejo, 49 Misc. 3d 1203(A), 2015 N.Y. Misc. LEXIS 3465 (Crim. Ct. Queens Cty. June 2, 2015) People v. White, 73 N.Y.2d 468 (1989) . People v. Wilson, 86 N.Y.2d 753 (1995). STATUTES AND CONSTITUTIONAL PROVISIONS C.P.L. § 30.30. C.P.L. § 170.45 C.P.L. § 210.45 N.Y. Const. art. VI, § 2. ii PAGES 13 34 31 31 passim 34 34 19 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- EARL CANADY, Defendant-Respondent. Kings County Docket Number 2011KN009074 APL-2016-00107 APPELLANT'S REPLY BRIEF ARGUMENT THE PEOPLE DID NOT VIOLATE DEFENDANT'S STATUTORY RIGHT TO A SPEEDY TRIAL. A. Introduction In his brief, defendant disputes the People's claims regarding only two periods of time, both of which were subsequent to the People's undisputedly valid February 9, 2011 statement of readiness: 1) the 47 days from March 2 to April 18, 2011; and 2) the 106 days from November 9, 2011 to February 23, 2012 (Defendant's Brief at 4-5, 16-32). Defendant does not contest the People's claims regarding the chargeabili ty of any other periods of time. 1 The People contend that with respect to the 47 days from March 2 to April 18, 2011, they were chargeable with only 6 days-- the 6 days from March 2 to March 8, 2011--because on March 2, 2011, while the People requested a 6-day adjournment to March 8, 2011, the court instead adjourned the case to a later date, April 19, 2011 see People's Main Brief at 10, 40-50). The People 1 At one point in his brief, defendant refers to a period of "contested delay" that consisted of "the 114 days between November 9, 2011 and March 2, 2012" (Defendant's Brief at 17). The People, however, are not disputing that 21 of those 114 days were chargeable to the People: 1) the 7 days from November 9 to November 16, 2011; 2) the 6 days from January 12 to January 18, 2012; and 3) the 8 days from February 23 to March 2, 2012 (~ People's Main Brief at 32-33, 51-57). Elsewhere, defendant correctly acknowledges that only 93 of the 114 days from November 9, 2011 to March 2, 2012 are "in dispute" (Defendant's Brief at 5 & n.5). In addition, defendant explicitly "does not contest the Appellate Term's ruling excluding the 10-day period" from February 5 to February 15, 2013, and explicitly does not "address" the 7-day period from February 23 to March 2, 2011, apparently because that 7-day period is not "dispositive" (Defendant's Brief at 6 n.6). In addition, while at one point in his brief, defendant asserts that he "will argue that much of [the] time" from October 3 to December 4, 2012 should have been charged to the People (Defendant's Brief at 4 n.4), defendant in fact never makes any such argument, and elsewhere in his brief asserts that for the purposes of the determination of the People's appeal, "[j]ust two periods of delay need be analyzed": 1) the 41 days from March 8 to April 18, 2011; and 2) 93 of the 114 days from November 9, 2011 to March 2, 2012 id. at 4-5). 2 also contend that with respect to the 106 days from November 9, 2011 to February 23, 2012, the People were chargeable with only 13 days--the 7 days from November 9 to November 16, 2011; and the 6 days from January 12 to January 18, 2012--because, respectively: 1) on November 9, 2 011, while the People requested a one-week adjournment, the court instead adjourned the case to January 12, 2012; and 2) on January 12, 2012, while the People requested a 6-day adjournment to January 18, 2012, the court instead adjourned the case to February 23, 2012 (see People's Main Brief at 11-12, 51-57). Defendant contends that the People were chargeable with all of the 41 days from March 8 to April 18, 2011, and with all of the 106 days from November 9, 2011 to February 23, 2012, and that the Appellate Term therefore correctly affirmed the Criminal Court's order granting his C.P.L. § 30.30 motion ("30.30 motion") and dismissing the information (Defendant's Brief at 5-6, 16-17). Defendant's contention, however, is based on factual assertions that are contradicted by the record and on flawed reasoning (see infra at 9-28). Moreover, in arguing in support of that contention, defendant mischaracterizes both the People's position regarding the applicability of the post-readiness request rule-- which is the rule that when the People make a post-readiness request for an adjournment to a specific date or of a specific 3 period of time, but the case is adjourned to a later date, the People are chargeable only with the number of days that they request--and the history of the proceedings in his case. First, contrary to defendant's assertion (Defendant's Brief at 4), the People are not contending that "under no circumstances can they ever be charged with post-readiness delay in excess of the time they requested." Rather, the People are contending that, with respect to a post-readiness request by the People for an adjournment, the post-readiness request rule applies, absent proof that the People's adjournment request was made in bad faith, or-- as defendant puts it--was "illusory" (see People's Main Brief at 41-43, 46-47; Defendant's Brief at 17-19, 28). In other words, with respect to a post-readiness request by the People for an adjournment, the post-readiness request rule applies, absent proof that at the time of the People's adjournment request, the People knew, or believed, that they would not be ready for trial on the 4 requested adjournment date. 2 Cf. People v. Carter, 91 N.Y.2d 795, 799 (1998) (where the People file an off-calendar statement of readiness, that statement will be deemed effective "[i]n the absence of proof that the readiness statement did not accurately reflect the People's position"). And, in defendant's case, not only did defendant fail to claim in the Criminal Court that any of the People's requests for adjournments were in bad faith or "illusory," but also, contrary to defendant's suggestion (see Defendant's Brief at 17-18, 27), the record does not support the 2 Insofar as defendant is contending that "[p] est-readiness delay must be charged to the People when they fail to demonstrate their continuing readiness" (Defendant's Brief at 19), that is not the law. Indeed, it would be unreasonable to require that, if, on a particular court date, the People announce their readiness for trial, but the court instead adjourns the case, then the People have to maintain their readiness for trial throughout the period from the particular court date through the adjournment date. If defendant's characterization of the law were correct, then there would be a number of absurd consequences, including the following: If on a particular court date, the People announce their readiness for trial, but the court, because of "court congestion," adjourns the case for three months, then the People might be chargeable with any days on which the assigned prosecutor (or a necessary witness) was on vacation during the period from the particular court date through the adjournment date. See Goss, 87 N.Y.2d at 797 ("post-readiness delay attributable to the court" or to "court congestion" is not chargeable to the People); see also People v. Kramer, 92 N.Y.2d 529, 539-40 (1998) (this Court reached certain conclusion regarding statutory standing in part because "interpretive analysis to the contrary might produce absurd and fundamentally unfair results"). 5 conclusion that when the People made their request for an adjournment on March 2, 2011, November 9, 2011, or January 12, 2012, the request was made in bad faith see People's Main Brief at 46-47; see infra at 10-11, 22-28). See People v. Bacquie, 52 Misc. 3d 505, 510 (Sup. Ct. Queens Cty. 2016) (with respect to post-readiness delay, "[w]hen the People are not ready and ask for a later date and defense counsel requests and receives a subsequent date, the People's original request is not per se negated because they are not ready to proceed on a later dateff; "There are a myriad of circumstances why [the People's] original projection into the future falls short ADAs being on trial on another matter, ADAs taking other jobs, witness availability in a constant state of fluctuation -- just to name a few possibilities. Consecutive not ready situations do not render the date initially requested by the People suspect. 8 ) ; cf. People v. Seepersad, 52 Misc. 3d 400, 405 (Crim. Ct. N.Y. Cty. 2016) ("That the People might be ready for trial on one date, but not ready on a subsequent date, is an entirely unremarkable phenomenon. There is nothing suspicious or unusual about it, and nothing about it is suggestive of bad faith 8 ). Second, the record does not support either defendant's assertion that "[s]crutiny of these proceedings reveals the signposts of a dysfunctional prosecution,ff including "chronic 6 'post-readiness' unreadiness" (Defendant's Brief at 16), or any suggestion of defendant that in this case, the People were engaged in delaying tactics, or were "exp1o [i] ting" post-readiness off- calendar statements of readiness, by allegedly declaring their readiness for trial only when the case was "not in court" (id. at 24-27). Rather, the People announced their readiness for trial in court on six different dates: February 9, 2011; June 21, 2011; September 13, 2011; April 3, 2012; June 19, 2012; and December 4, 2012 (64-66, 85-86, 107-09, 120-21, 136-39). 3 Moreover, with respect to three of the five off-calendar statements of readiness that the People filed (the off-calendar statements of readiness filed on May 4, 2011, March 2, 2012, and October 9, 2012 [86, 116- 17, 137-39, 143, 145]), on the court date immediately following the date of the off-calendar statement of readiness (on, respectively, June 21, 2011, April 3, 2012, and December 4, 2012 [see supra at 7]), the People again announced their readiness for trial. And with respect to each of the two remaining off-calendar statements of readiness--the off-calendar statements of readiness filed on April 18, 2011 and September 6, 2012--the apparent 3 Numbers in parentheses refer to pages of the People's appendix. 7 explanation for the People's not being ready on the court date irrnnediately following the date of the off-calendar statement of readiness (on, respectively, April 19, 2011 and October 3, 2012) did not call into question the validity of the off-calendar statement of readiness: On April 19, 2011, the People were not ready, apparently because they did not have in the courtroom their file pertaining to this case (30 ~ 5; 136; see People's Main Brief at 10, 46-48; infra at 12-13, 16-17); and on October 3, 2012, the People were not ready, because the assigned prosecutor was ~engaged" in another court part (114-16; see People's Main Brief at 14) . 4 Thus, contrary to defendant's assertion that this case was ~dysfunctional" and involved ~chronic 'post-readiness' 4 Defendant asserts that on April 19, 2011, ~the absence of the file [in the courtroom] could readily be explained by the prosecutor's admitted in-court unreadiness" (Defendant's Brief at 30). If by this assertion, defendant means that, because the People were not ready for trial on April 18, 2011, the People chose not to bring the file pertaining to defendant's case to the courtroom on April 19, 2011, it is highly unlikely that that assertion is correct: If, on a court date for a particular case, the People fail to bring the file pertaining to the case to the courtroom, then--regardless of whether the People are ready for trial--the absence of the People's file in the courtroom impairs both the People's ability to maintain accurate and complete records regarding the case and their ability to make accurate and complete corrnnunications regarding the case. 8 unreadiness" (Defendant's Brief at 16), in fact, in this case, by repeatedly announcing their readiness for trial--on six different court dates as well as in five off-calendar statements--the People complied not only with the letter of C.P.L. § 30.30, but also with its spirit. Delays that occurred despite the People's numerous announcements of readiness do not count against the People for purposes of calculating chargeable time under C.P.L. § 30.30, because that statute "was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly." People v. Sinistaj, 67 N.Y.2d 236, 239 (1986). B. Only 6 Days (March 2 to March 8, 2011) of the 47 Days from March 2 to April 18, 2011 Were Chargeable to the People. Defendant contends that even though on March 2, 2011, the court adjourned the case to a date, April 19, 2011, that was later than the People's requested adjournment date of March 8, 2011, the post-readiness request rule does not apply to the period from March 2 to April 19, 2011. According to defendant, the post- readiness request rule does not apply to that period, because-- given that the People filed a statement of readiness on April 18, 2011 that purportedly was illusory--the People's request on March 2 for an adjournment to March 8, 2011 was itself illusory 9 (Defendant's Brief at 17-20, 27-28). Defendant claims, in the alternative, that assuming that the April 18, 2011 statement of readiness was valid, the fact that the People filed that statement of readiness shows that their request for an adjournment to March 8, 2011 was illusory (id. at 28). Defendant's claims regarding the period from March 2 to April 18, 2011, however, are not a proper subject for appellate review: 1) defendant failed to present to the Criminal Court the claim that the People's request for an adjournment to March 8, 2011 was made in bad faith or was illusory; 2) in the Criminal Court, defendant never challenged the validity of the April 18, 2011 statement of readiness, and defendant in fact implicitly conceded that the April 18, 2011 statement of readiness was valid; and 3) the record does not conclusively show either that the People's request for an adjournment to March 8, 2011 was made in bad faith or was illusory or that the April 18, 2011 statement of readiness was illusory (27-36; see People's Main Brief at 46-49; 10 Defendant's Brief at 7; infra at 12-14, 16-17) . 5 See People v. Nieves, 67 N.Y.2d 125, 128, 136 (1986); see also People v. DeJesus, 69 N.Y.2d 855, 857 (1987); cf. People v. Chavis, 91 N.Y.2d 500, 504, 506 (1998) (where People requested that this Court remit case to Appellate Division for review, in the interest of justice, of certain of their claims why defendants' 30.30 motions should not have been granted, Court held that Appellate Division was ~without power to considern those claims because the People had ~waived these claims before the motion court,n and because defendants had not had ~the opportunity to counter these claims legally or factuallyn) . 5 Contrary to defendant's repeated suggestions in his brief (see Defendant's Brief at 23-24, 30), the People's assertion in their main brief--that ~it is not at all clear from the record why, on April 18, 2011, the People filed a statement of readiness for trialn (People's Main Brief at 45) --was not an assertion regarding whether the record supported the conclusion that the statement of readiness was valid. Rather, that assertion of the People referred to the fact that it is not clear from the record what motivated the People to file a statement of readiness on April 18, 2011, given that April 19, 2011 was the next court date, and given that--because, under the post-readiness request rule, the speedy trial clock was tolled during the period from March 8 to April 19, 2011--the April 18, 2011 statement of readiness was legally superfluous (see People's Main Brief at 41-43; supra at 3-4) . And, in fact, in their main brief, the People have argued why the record supports the conclusion that the People's April 18, 2011 statement of readiness was valid (see People's Main Brief at 47-49). 11 Defendant asserts that in the Criminal Court, he "challenge [d) the legitimacy of the People's April 18, 2011" statement of readiness (Defendant's Brief at 28-29). That assertion is patently false. First, in support of his 30.30 motion, the defendant asserted the following with respect to the period from March 2 to April 19, 2011: 1) on March 2, 2011, the People were not ready and requested an adjournment to March 8, 2011; 2) "[h] ow ever," the People "instead decided to announce their readiness on April 18, 2011"; 3) 47 days "elapsed from March 2, 2011 until the prosecution announced that they were ready off calendar on April 18, 2011"; and 4) "[t] rial was to commence on April 19, 2011," but "[t)he prosecution did not have a file and were [sic) not ready to proceed to trial" (30, 34-35). Based on those factual assertions, defendant argued that with respect to the 48-day period from March 2 to April 19, 2011, the People were chargeable with only the 4 7 days of "prosecutorial delay" from March 2 to April 18, when they "decided to announce their readiness" (35). Notably absent from defendant's arguments in support of his 30.30 motion was any claim that the People were chargeable with the 1 day from April 18 to April 19, 2011. If--as defendant asserts (Defendant's Brief at 28-29)--defendant's 30.30 motion had challenged the validity of the April 18, 2011 statement of 12 readiness, then defendant presumably would have argued in support of his motion that the 1 day from April 18 to April 19, 2011 was chargeable to the People. The absence of any such argument demonstrates that in the Criminal Court, not only did defendant fail to challenge the validity of the April 18, 2011 statement of readiness, but also he implicitly conceded that that statement of readiness was valid. 6 And, in asserting in his motion papers that on April 19, 2011, the People did not have in the courtroom their file pertaining to this case (see supra at 12), defendant apparently was presenting the explanation why, although on April 18, the People had announced their readiness for trial, on April 19, the People were not ready to proceed to trial. See People v. Stirrup, 91 N.Y.2d 434, 437, 440 & n.3 (1998) (off- calendar statement of readiness "serve [d) to toll the 'speedy trial clock' from running for the remainder of [an] adjournment period"; this Court noted that "defendant himself before the trial court requested that only 8 days of the relevant 48-day period be 6 The record also provides no support for the assertion in defendant's brief that, in his motion papers, defendant either "expressed skepticism regarding the legitimacy" of the April 18, 2011 statement of readiness or made "an argument focus[ing] on the incompatibility between the People's six-day adjournment request on March 2 and their failing to file [a statement of readiness] until April 18" (Defendant's Brief at 29). 13 charged to the People (January 14 to January 22, the date of the notice of readiness), which suggests that he acknowledged at least implicitly the genuineness of the notice of readiness"). Defendant does not argue, nor can he convincingly argue see People's Main Brief at 4 7-48; supra at 12-13; infra at 16-17), that the record "conclusively demonstrate [s]" that the April 18, 2011 statement of readiness was illusory, and that, therefore-- despite defendant's failure to challenge in the Criminal Court the validity of the statement of readiness (see supra at 12-13) --it was proper for the Appellate Term to hold that the statement of readiness was illusory (xii; People v. Canady, 50 Misc. 3d 132(A), 2015 N.Y. Misc. LEXIS 4779, at *10-*11 [App. Term, 2d, 11th & 13th Jud. Dists. Dec. 31, 2015]). See Nieves, 67 N.Y. 2d at 136 (on defendant's appeal, Appellate Term improperly relied on argument of People that was not presented to trial court, because "[t] he record [did] not conclusively demonstrate that [the argument was correct], and clearly the argument could have been countered by the defendant had the People raised it before the trial court"). Rather, defendant bases his claim that the April 18, 2011 statement of readiness was illusory on the People's failure in the Criminal Court to provide on the record any explanation for why they were not ready on April 19, 2011 (see Defendant's Brief at 20, 23-24). But, because in the Criminal Court, defendant did not 14 claim that that statement of readiness was illusory, the People did not have an opportunity in the Criminal Court to counter a claim that the statement of readiness was illusory. Therefore, the Appellate Term improperly relied on the purported invalidity of the April 18, 2011 statement of readiness to conclude that the People were chargeable with the 47 days from March 2 to April 18, 2011. See Nieves, 67 N.Y.2d at 136; see also DeJesus, 69 N.Y.2d at 857 (on defendant's appeal, this Court held that People's claims were "unpreserved," given that, because People failed to present claims to trial court, "there was no occasion for defendant to make a record" and trial court had "no opportunity" "to consider these matters"); cf. Chavis, 91 N.Y.2d at 504, 506. Defendant claims that "the People [were not] deprived of an opportunity to make an adequate record regarding the legitimacy of the April 18, 2011" statement of readiness, arguing that "[t]he appropriate time to have done this would have been on the following day when the case was in court, but the prosecutor said nothing about it then, or later" (Defendant's Brief at 29). Defendant ignores, however, that the record relevant to the determination of a 30.30 motion is not limited to the transcripts of the court proceedings prior to the filing of the motion, but may also include factual allegations and documents presented in papers submitted with respect to the motion, material in the court 15 file pertaining to the case, and evidence elicited at a hearing on the motion. See People v. Robinson, 47 A.D.3d 847, 848 (2d Dep't 2008) (rejecting defendant's argument "that the People were obligated to specify the basis for any statutory exclusion at the time the adjournment was requested, and not, as here, for the first time in papers submitted in opposition to a motion to dismiss"; "[w] here, as here, the reason for an adjournment as stated in the People's response to a speedy trial motion is corroborated by the record, it may be considered even though it was not articulated by the prosecutor when the adjournment was requested" [citations omitted] ) ; see also People v. Berkowitz, 50 N.Y.2d 333, 348-49 (1980) (on defendant's 30.30 motion, Supreme Court improperly relied on calendar notations in determining exc1udabili ty of periods of time; determination regarding excludability "is one which must be made following an adversarial proceeding at which the defendant has an adequate opportunity to contend that the time is not excludable") . In defendant's case, if, in the Criminal Court, defendant had challenged the validity of the April 18, 2011 statement of readiness, then the People properly could have countered that claim in their response to the motion, relying, at the very least, on the notation in the court file--and on the statement in defendant's 30.30 motion--that on April 19, 2011, the People did 16 not have their file in court (30 ~ 5; 136; see People's Main Brief at 10, 47-48; supra at 12). But because, in the Criminal Court, defendant did not claim that the April 18, 2011 statement of readiness was illusory--and, in fact, implicitly conceded that the statement of readiness was valid (see supra at 12-13)--the People did not have an opportunity to counter, in their opposition to defendant's 30.30 motion, a claim that the statement of readiness was illusory. Consequently, defendant is wrong in suggesting that the Appellate Term's decision in this case properly relied on the purported invalidity of that statement Defendant's Brief at 20-21, 28-30). of readiness see In addition, contrary to defendant's claim (Defendant's Brief at 21-24), given this Court's decisions in Nieves, DeJesus, and Chavis (see supra at 11, 14-15), neither of the concurring opinions in People v. Sibblies, 22 N.Y.3d 1174 (2014), supports the conclusion that the Appellate Term was correct in finding that the April 18, 2011 statement of readiness was illusory: In Sibblies, unlike in defendant's case (see supra at 12-13), the defendant, in his 30.30 motion, challenged the validity of the off-calendar statement of readiness at issue. See id. at 1176, 1178 (Lippman, C.J., concurring); id. at 1180 (Graffeo, J., concurring) But even assuming that this Court's decisions in Nieves, DeJesus, and Chavis did not bar the Appellate Term from 17 finding that the April 18, 2011 statement of readiness was illusory, neither of the concurring opinions in Sibblies provides support for the conclusion that the Appellate Term was correct in finding that the statement of readiness was illusory. In Sibblies, the defendant was charged with assaulting a police officer, the People filed an off-calendar statement of readiness, subsequently--less than ten days after filing the statement of readiness--the People ordered the injured police officer's medical records, and on the next court date, the People declared, "The People are continuing to investigate and are awaiting medical records. (Graffeo, J., concurring). It was a cop assault." Id. at 1180 Thereafter, the defendant filed a 30.30 motion, which, in part, challenged the validity of the off- calendar statement of readiness. Id. at 1176, 1178 (Lippman, C.J., concurring); id. at 1180 (Graffeo, J., concurring); People v. Sibblies, 98 A.D.3d 458, 459 (1st Dep't 2012), rev'd, 22 N.Y.3d 1174 (2014). In opposing the motion, the People asserted: 1) "because they could have proceeded to trial without the medical records," the off-calendar statement of readiness "was made in good faith and was not way [sic; in any way?] illusory"; and 2) "their decision to continue their investigation after filing [the] statement of readiness did not render that statement of readiness, made in good faith, a nullity." 98 A.D.3d at 459. 18 And, after the trial court denied the defendant's 30.30 motion, the People, at trial, introduced the medical records into evidence. Id. In Sibblies, this Court held that the 30.30 motion should have been granted, but there was no majority opinion. 22 N.Y. 3d at 1175. The two concurring opinions--one of which was written by Chief Judge Lipmann, with whom Judges Rivera and Smith joined; and the other of which was written by Judge Graffeo, with whom Judges Pigott and Read joined--each concluded, for different reasons, that the off-calendar statement of readiness was not effective. 7 Id. at 1178-79 (Lippman, C.J., concurring); id. at 1180-81 (Graffeo, J., concurring). Chief Judge Lippman's concurring opinion concluded that the off-calendar statement of readiness was ineffective under a proposed new rule: that where, post-readiness, the People file an off-calendar statement of readiness, but on the next court date, the People announce that they are not ready, the statement of 7 As defendant implicitly concedes (Defendant's Brief at 21, 24) , because the New York State Constitution provides that "the concurrence of four [members of this Court] shall be necessary to a decisionu (N.Y. Canst. art. VI, § 2[a]), neither of the concurring opinions in Sibblies constitutes a decision of this Court, and therefore neither of those opinions has precedential effect. 19 readiness, "if challenged," will be deemed illusory, unless the People "demonstrate that some exceptional fact or circumstance arose after their declaration of readiness so as to render them presently not ready for trial" (the "proposed exceptional circumstance rule"). See id. at 1178 (Lippman, C.J., concurring) (emphasis added). By its own terms, Chief Judge Lippman's proposed exceptional circumstance rule would not be applicable to the April 18, 2011 statement of readiness in defendant's case, because, in the Criminal Court, defendant did not challenge the validity of that statement of readiness, and in fact implicitly conceded that the statement of readiness was valid (see supra at 12-13). Judge Graffeo's concurring opinion concluded that the off- calendar statement of readiness at issue in that case was ineffective under People v. Carter, 91 N.Y.2d 795 (1998), which held that where the People file an off-calendar statement of readiness, the statement of readiness will be deemed effective " [ i] n the absence of proof that the readiness statement did not accurately reflect the People's position," 91 N.Y.2d at 799. See Sibblies, 22 N.Y. 3d at 1180-81 (Graffeo, J., concurring) . Judge Graffeo reasoned that the off-calendar statement of readiness in Sibblies "did not accurately reflect the People's position," because "the prosecutor gave no explanation for the change in 20 circumstances between the initial statement of readiness and the subsequent admission that the People were not ready to proceed without the medical records." Id. at 1181 (Graffeo, J., concurring) . The reasoning of Judge Graffeo's concurring opinion--like Chief Judge Lippman's concurring opinion (see supra at 19-20)--does not support the Appellate Term's finding in defendant's case that the April 18, 2011 statement of readiness was illusory: Given the absence of any defense challenge in the Criminal Court to the April 18, 2011 statement of readiness--as well as the notation in the court file, and the statement in defendant's 30.30 motion, that suggested that the reason that the People were not ready on April 19, 2011 was because they did not have in the courtroom their own file pertaining to defendant's case see supra at 12-13, 16-17)--the People's failure to provide, in the Criminal Court, an explanation why, although they filed a statement of readiness on April 18, 2011, they were not ready for trial on April 19, 2011, does not constitute "proof that the 21 readiness statement did not accurately reflect the People's position," see Carter, 91 N.Y.2d at 799. 8 Defendant also contends that--regardless of whether the April 18, 2011 statement of readiness was illusory--the fact that on April 18, 2011, the People filed a statement of readiness "render[ed]" the People's request on March 2, 2011 for a 6-day adjournment "illusory" or illegitimate because "[i] t stands to reason that if the People had actually needed only six days to prepare for trial as of March 2, they should not have needed to wait until April 18 to claim falsely [or otherwise] -- that they were now ready for trial" (Defendant's Brief at 27-28 [material in brackets not in original]) . Defendant's contention is unpersuasi ve. In the context of the post-readiness request rule, when a court, post-readiness, adjourns the case to a date 8 Given that neither of the concurring opinions in Sibblies supports the conclusion that the Appellate Term was correct in finding that the April 18, 2011 statement of readiness was illusory (see supra at 17-22), for the purposes of deciding this appeal, it is unnecessary for this Court to determine whether it should adopt the proposed exceptional circumstance rule set forth in Chief Judge Lippman's concurring opinion. But in the event that this Court concludes that, for the purposes of deciding this appeal, it is necessary for the Court to determine whether to adopt the proposed exceptional circumstance rule, then the Court should, for the reasons set forth below, decline to adopt that rule (see infra at 28-34). 22 later than the adjournment date that the People request, the court is in effect informing the People that the court is not scheduling a trial of the case before the actual adjournment date and that, therefore, the People do not have to be ready for trial, much less announce their readiness for trial, until the actual adjournment date. Defendant' s argument, however, appears to be proposing that--despite the fact that the court's adjournment of the case to April 19, 2011, instead of to the People's requested adjournment date of March 8, 2011, meant that the court did not intend to conduct a trial in defendant's case on March 8 or on any date from March 8 through April 18--the People not only should have announced their readiness for trial on March 8, 2011, but also had an obligation, under C.P.L. § 30.30, to maintain "continuing readiness" (see Defendant's Brief at 19) ready during the period from March 8 through April 18. But such a proposal is at odds with the post-readiness request rule, which--in providing that, post-readiness, when the court adjourns the case to a date later than the People's requested adjournment date, the People are chargeable only with the number of days that they request-- provides that, once the court adjourns the case to the later date, the People are not under any C.P.L. § 30.30 obligation to be ready for trial on their requested adjournment date or on any other date earlier than the actual adjournment date. 23 Furthermore, insofar as defendant's claim that the 41 days from March 8 to April 18, 2011 were chargeable to the People is based on his assertion that the People failed to "clarify" the reason for the "very brief duration of their adjournment request[]" on March 2, 2011 (Defendant's Brief at 20), that claim also fails. The People did in fact provide a clear reason for their adjournment request that was consonant with the length of the adjournment that they requested: When they made the request for a 6-day adjournment to March 8, 2011, the People informed the court that the prosecutor assigned to the case was on trial (77). In short, under the post-readiness request rule, because the People's April 18, 2011 statement of readiness neither proves--nor constitutes evidence to support the conclusion--that the People's request on March 2, 2011 for an adjournment to March 8, 2011 was made in bad faith, and because there is no other reason to conclude that that adjournment request was made in bad faith, the 41 days from March 8 to April 18, 2011 were not chargeable to the People. 24 C. Only 13 Days {the 7 days from November 9 to November 16, 2011, and the 6 days from January 12 to January 18, 2012) of the 106 Days from November 9, 2011 to February 23, 2012 Were Chargeable to the People. Defendant's argument that all 106 days from November 9, 2011 to February 23, 2012 were chargeable to the People is premised on the following factual assertions, none of which was presented to the Criminal Court in support of defendant's 30.30 motion and none of which is supported by the record: 1) during the period from their contact with the complainant in September 2011 through the end of January 2012, the People tried to contact or locate the complainant but were unable to do so; 2) during that same period, the complainant was "unwilling[] to communicate" with the District Attorney's Office; 3) during that same period, the complainant was "unavailable"; 4) the People's adjournment requests on November 9, 2011 and January 12, 2012 were "illusory"; and 5) from the People's contact with the complainant in September 2011 to February 23, 2012, the complainant, "apparent[ly]," was "refus [ing] to continue to cooperate with" the People {5-11, 27-36; Defendant's Brief at 2, 17, 19, 31-32; see People's Main Brief at 15-17, 22-24, 54-56). Because defendant did not make any such assertions in support of his 30.30 motion and because the record does not conclusively establish that any of those assertions are correct, any claims premised on any of those 25 assertions are not properly a subject of this appeal (see id. at 56). See Nieves, 67 N.Y.2d at 136; see also DeJesus, 69 N.Y.2d at 857. The sole basis for those assertions of defendant is the following colloquy that took place in court on February 23, 2012: THE COURT: TP2, People ready? [THE PROSECUTOR]: No, Your Honor. The complaining witness is unavailable. The People will serve and file a statement of readiness, off-calendar. THE COURT: cooperative? Has he been spoken [sic]? Is he [THE PROSECUTOR]: Yes. The last contact looks to be in September. However, the People have spoken with the complaining witness' family in February, but can't reach the complaining witness. (102-03; see Defendant's Brief at 2-3, 5, 11, 14-15, 17, 19, 31-32). But the only inarguable factual conclusions regarding the complainant's availability--or regarding the efforts, or ability, of the People to contact the complainant--that can be derived from that colloquy are the following: 1) On February 23, 2012, the complainant was "unavailable"; 2) as of February 23, 2012, the People's "last contact" with the complainant appeared to have been in September 2011; and 3) while, in February 2012, the People "spoke[] with" the complainant's family, in February 2012, up 26 through February 23, 2012, the People were unable to "reach" the complainant (102-03). Furthermore, insofar as defendant's claim that all of the 106 days from November 9, 2011 to February 23, 2012 were chargeable to the People is based on his assertion that the People did not "clarify" the reason for the "very brief duration of their adjournment requests" on November 9, 2011 and January 12, 2012 (Defendant's Brief at 20), that claim also fails. With respect to each of those adjournment requests, the People did in fact provide a clear reason for the adjournment request that was consonant with the length of the adjournment that they requested: When on November 9, 2011 the People requested a 7-day adjournment to November 16, 2011, they informed the court that the arresting officer was "unavailable" ( 97) ; and in their response to defendant's 30.30 motion, the People explained that the reason for their request on January 12, 2012 for a 6-day adjournment to January 18, 2012 was that the prosecutor assigned to the case was out of the office (39). And because the fact that the People had not been in contact with the complainant during the period from November 9, 2011 to February 23, 2012 did not by itself constitute proof that either the People's November 9, 2011 request for an adjournment to November 16, 2011, or the People's January 12, 2012 request for an 27 adjournment to January 18, 2012, was made in bad faith--and because there is no other reason to conclude that either of those adjournment requests was made in bad faith--under the post- readiness request rule, of the 106 days from November 9, 2011 to February 25, 2012, only 13 days were chargeable to the People: 1) the 7 days from November 9 to November 16, 2011; and 2) the 6 days from January 12 to January 18, 2012 see supra at 4-5, 27). Cf. Carter, 91 N.Y.2d at 799 (where the People file an off- calendar statement of readiness, that statement will be deemed effective "[i]n the absence of proof that the readiness statement did not accurately reflect the People's position"). D. The Proposed Exceptional Circumstance Rule Set Forth in Chief Judge Lippman's Concurring Opinion in People v. Sibblies, 22 N.Y.3d 1174 (2014), Should Not Be Adopted. Defendant urges this Court to adopt the proposed exceptional circumstance rule set forth in Chief Judge Lippman's concurring opinion in Sibblies--namely, that where the People file a statement of readiness off-calendar, but on the next court date, the People announce that they are not ready, the off-calendar statement of readiness, nif challenged" by the defense, will be deemed illusory, unless the People ndemonstrate that some exceptional fact or circumstance arose after their declaration of readiness so as to render them presently not 28 ready for trial" (22 N.Y. 3d at 1178 [Lippman, c. J. , concurring]) . But, given that, by its own terms, the rule would apply only if the defense challenges the off-calendar statement of readiness, and given that in his brief to this Court, the only statement of readiness that defendant challenges--the April 18, 2011 statement of readiness--was not challenged by the defense in the Criminal Court (see supra at 12-13), the proposed exceptional circumstances rule has no bearing on this Court's determination of this appeal. However, in the event that this Court concludes that resolution of the question of whether it should adopt the proposed exceptional circumstance rule is relevant to the Court's determination of this appeal, then this Court should decline to adopt that rule, because the rule would constitute a radical departure from C.P.L. § 30.30 law that is not supported by the language of the statute and does not rationally advance the purpose of the statute, and because the rule would also be impractical. See Seepersad, 52 Misc. 3d at 405-08 (characterizing rule proposed in Chief Judge Lippman's opinion in Sibblies as a "radical change" in speedy trial law, and explaining why following that rule would be "ill-advised," "undesirable," and "not necessary") ; People v. Jaoui, 52 Mise. 3d 769, 772-74 (Crim. Ct. N.Y. Cty. 2016) (explaining reasons to 29 follow Judge Graffeo's approach, Lippman's approach, in Sibblies). rather than Chief Judge Under the proposed exceptional circumstance rule, even where the entirety of the circumstances shows that when the People filed an off-calendar statement of readiness, they were in fact ready to proceed to trial, such a statement of readiness would be deemed to be invalid if, on the court date immediately following that statement of readiness, the People requested an adjournment for any of the numerous reasons for which they can fall out of readiness for trial, but that ordinarily do not constitute an "exceptional fact or circumstance," such as: 1) the People failed to produce the incarcerated defendant on that date; 2) the assigned prosecutor was on vacation on that date; or 3) sometime after the filing of the statement of readiness, the case had been reassigned to a different prosecutor, who needed time to become familiar with the case. Applying the proposed exceptional circumstance rule to such a set of facts would unfairly penalize the People for not being ready for trial on the court date immediately following the People's accurate off-calendar statement of readiness. Moreover, applying the proposed exceptional circumstance rule to such a set of facts would be inconsistent with the principle, articulated by this Court, that a valid statement of readiness 30 "contemplates an indication of present readiness, not a prediction or expectation of future readiness." See People v. Kendzia, 64 N.Y.2d 331, 337 (1985); accord Chavis, 91 N.Y.2d at 505-06; People v. Wilson, 86 N.Y.2d 753, 754 (1995). Hence, not only is the proposed exceptional circumstance rule unsupported by the language of C. P. L. § 30. 30, but also the proposed rule would not rationally advance the purpose of the statute, which is to "in sur [ e] prompt prosecutorial readiness for trial." See Sinistaj, 6 7 N . Y • 2 d at 2 3 9 ; _s_e_e _a_l_s_o .::D..::e:..:l:...:e:..:o:..:n:.:___:Vc.:·:__..:.N:...:e:.:w;__-=Y-=o:..:r:..:k=-----=C:..:i:...:t'-"-y Sanitation Dep't, 25 N.Y.3d 1102, 1106 (2015) (rejecting interpretation of statute, because interpretation was unsupported by language of statute); People v. White, 73 N.Y.2d 468, 473-74 (1989) (in interpreting statute, "the spirit and purpose of the act and the objects to be accomplished" must be considered) . The proposed exceptional circumstance rule is also impractical. Adoption of that rule could unduly burden prosecution witnesses, given that on the court date immediately following an off-calendar statement of readiness, a necessary prosecution witness could not be unavailable for any reason that did not constitute an "exceptional fact or circumstance"--such as wanting to attend a child's class trip--when invalidating the 31 statement of readiness would render the People vulnerable to a dismissal under C.P.L. § 30.30. In his concurring opinion in Sibblies, Chief Judge Lippman stated that n[t]he requirement of an exceptional fact or circumstance should be the same as that contained in CPL 30.30 (3) (b). " 9 22 N.Y.2d at 1178. Chief Judge Lippman's statement, however, was not a statement that C.P.L. § 30.30(3) (b) supported the adoption of his proposed exceptional circumstance rule. Rather, Chief Judge Lipmann's statement was merely a statement that the phrase nexceptional fact or circumstance," in the context of the proposed exceptional circumstance rule, should have the same meaning as that phrase has in the context of C. P.L. § 30.30 (3) (b). See 22 N.Y. 3d at 9 Criminal Procedure Law§ 30.30(3) (b) provides: A motion made pursuant to subdivisions one or two upon expiration of the specified period may be denied where the people are not ready for trial if the people were ready for trial prior to the expiration of the specified period and their present unreadiness is due to some exceptional fact or circumstance, including, but 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. (Emphasis added) . 32 1178-79 (Lippman, C.J., concurring) (stating that "the People's unreadiness, while declared in good faith, was not due to the type of 'exceptional fact or circumstance' contemplated by CPL 30.30(3) (b)"; "[i]t was not occasioned by, for example, the sudden unavailability of a material witness or material evidence, merely the People's desire to strengthen their case"). In any event, C.P.L. § 30.30(3) (b) does not warrant adoption of the proposed exceptional circumstance rule, because that provision does not pertain to whether a statement of readiness should be deemed illusory, and in fact applies to a situation in which it is assumed that the People first were ready for trial but subsequently were not ready for trial. Insofar as Chief Judge Lippman devised the proposed exceptional circumstance rule as a means to discourage prosecutors from using off-calendar statements of readiness to "filibuster[]" trials (22 N.Y.3d at 1178)--or insofar as, as defendant asserts (Defendant's Brief at 24-27), there is a need to prevent prosecutors from using off-calendar statements of readiness as a delaying tactic--there is an existing mechanism to further that objective. If a court that is determining a C.P.L. § 30.30 motion has doubts about the truthfulness or accuracy of an off-calendar statement of readiness that was followed by a court date on which the People were not ready for 33 trial, then the court can ask the People for an explanation for why they were ready on the off-calendar date, but were not ready on the following court date. If the People cannot provide a reasonable explanation, then the court should hold that the statement of readiness was illusory. The court could also resolve questions of fact regarding the truthfulness or accuracy of any statement of readiness by means of a hearing. See C.P.L. § 210.45(6), (7); see also C.P.L. § 170.45 (applying to misdemeanors the procedural rules prescribed in C.P.L. § 210.45); People v. Monegro, 49 Misc. 3d 1202(A), 2015 N.Y. Misc. LEXIS 3411, at *1 (Sup. Ct. Bronx Cty. Sept. 23, 2015) (court conducted a hearing as to whether an off-calendar statement was illusory, where People were not ready on the next calendar date); People v. Vallejo, 49 Misc. 3d 1203(A), 2015 N.Y. Misc. LEXIS 3465, at *5-*6 (Crim. Ct. Queens Cty. June 2, 2015) (where court record "raise[d] questions about the truth of the People's prior certificates of readiness," court ordered a hearing to resolve issues of fact). In sum, principles of statutory interpretation do not support defendant's contention that this Court should adopt the proposed exceptional circumstance rule. 34 E. Conclusion In sum, for the reasons stated in this brief and in the People's main brief, the Criminal Court's dismissal of the information on C.P.L. § 30.30 grounds was erroneous, because the People were chargeable with, at most, only 77 days, which is less than the 90-day statutory limitation period applicable to defendant's case. Consequently, the Appellate Term's order affirming the Criminal Court's dismissal of the information should be reversed, and the information should be reinstated. 35 ····::.··:·.·:.· . . ··:.· ··:··.: ·:·· . . CONCLUSION FOR THE REASONS STATED IN THIS BRIEF ru~D IN THE PEOPLE'S MAIN BRIEF, THE ORDER OF THE APPELLATE TERM SHOULD BE REVERSED AND THE INFORMATION SHOULD BE REINSTATED. Dated: Brooklyn, New York Oct ober 14 , 2016 LEONARD JOBLOVE SETH M. LIEBERMAN Assistant District Attorneys of Counsel Respectfully submitted, ERIC GONZALEZ Acting District Attorney Kings County 36