People
v.
Appel

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTSJul 24, 2014
2014 N.Y. Slip Op. 51152 (N.Y. App. Div. 2014)

2010-3267 N CR

07-24-2014

The People of the State of New York, Respondent, v. David Appel, Appellant.


PRESENT: : , J.P., MARANO and TOLBERT, JJ.

Appeal from a judgment of the District Court of Nassau County, First District (Erica L. Prager, J.), entered December 3, 2010. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated. The appeal from the judgment of conviction brings up for review so much of an order of the same court dated May 21, 2008, following a hearing, as denied defendant's motion to dismiss the accusatory instrument on statutory speedy trial grounds.

ORDERED that the judgment of conviction is reversed, on the law, so much of the order dated May 21, 2008 as denied defendant's motion to dismiss the accusatory instrument on speedy trial grounds is vacated, defendant's motion is granted, the accusatory instrument is dismissed, and the fine and surcharge, if paid, are remitted.

On September 23, 2006, defendant was arraigned on a simplified traffic information charging him with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). On September 25, 2007, defendant filed a motion to dismiss the accusatory instrument on the ground that he was denied his statutory right to a speedy trial (see CPL 30.30 [1] [b]). After a hearing on March 17, 2008, the District Court, among other things, denied the speedy trial motion, finding that only seven days were chargeable to the People between defendant's arraignment and the date of the hearing. Following a jury trial, defendant was convicted of driving while intoxicated. On appeal, defendant contends, among other things, that the accusatory instrument is facially insufficient and that his speedy trial motion should have been granted.

The simplified traffic information at issue substantially conforms to the form prescribed by the Commissioner of Motor Vehicles (see CPL 100.25 [1]; 100.40 [2]; Regulations of Commissioner of Motor Vehicles [15 NYCRR] § 91; People v Tytutin, 39 Misc 3d 131[A], 2013 NY Slip Op 50470[U] [App Term, 2d, 11th & 13th Jud Dist 2013]) and provides the court with sufficient information to establish that it has jurisdiction to hear the case (see People v Fernandez, 20 NY3d 44 [2012]; People v Key, 45 NY2d 111 [1978]; People v Bize, 30 Misc 3d 68 [App Term, 9th & 10th Jud Dists 2010]; People v Ferro, 22 Misc 3d 7 [App Term, 9th & 10th Jud Dists 2008]). Since defendant failed to move to dismiss the simplified traffic information on the ground that the supporting deposition provided therewith does not comply with the requirements of CPL 100.25, his facial sufficiency contention regarding the supporting deposition has been waived (see People v Key, 45 NY2d at 116-117).

The People were required to announce their readiness for trial within 90 days of the September 23, 2006 commencement of the action (see CPL 30.30 [1] [b]; CPL 100.05). Once a defendant shows that more than 90 days of delay have elapsed, the burden of showing that certain periods of time should be excluded falls on the People (see People v Berkowitz, 50 NY2d 333, 349 [1980]). The People's failure to be ready within this statutory period, or to make a sufficient showing of excludability, requires dismissal of the accusatory instrument (see People v Berkowitz, 50 NY2d at 349; People v Pepper, 32 Misc 3d 134[A], 2011 NY Slip Op 51450[U] [App Term, 9th & 10th Jud Dists 2011]). A discussion of the relevant time periods follows.

December 18, 2006 to June 28, 2007

It is conceded that on December 18, 2006, a motion schedule was set in the District Court whereby the parties agreed that defendant would serve and file his omnibus motion by January 25, 2007; that the People would serve and file their opposition papers by February 13, 2007; and that defendant would serve any reply papers by February 27, 2007, which would also be the adjourned date. Although defendant timely served and filed his omnibus motion, the People failed to serve and file opposition papers. On April 2, 2007, the People requested a two-week adjournment to serve and file their opposition papers. The case was then adjourned to April 25, 2007, on which date the People's opposition papers were submitted, and the case was adjourned to June 28, 2007 for the court's decision. The People concede that the 57-day period from February 27, 2007 to April 25, 2007 is chargeable to them. The 14 days from February 13, 2007 to February 27, 2007, which constitutes a period of unreasonable delay, is also chargeable to the People since they failed to abide by the original motion schedule and provided no reasonable explanation for their failure to do so (see People v Delosanto, 307 AD2d 298 [2003]; People v Gonzalez, 266 AD2d 562 [1999]; People v Hock, 40 Misc 3d 141[A], 2013 NY Slip Op 51505[U] [App Term, 9th & 10th Jud Dists 2013]; cf. CPL 30.30 [4] [a]). Consequently, the 71-day period from February 13, 2007 to April 25, 2007 is chargeable to the People, and the time from April 25, 2007 to June 28, 2007 is excludable pursuant to CPL 30.30 (4) (a) because the omnibus motion was under consideration by the District Court.

June 28, 2007 to September 19, 2007

When defendant failed to appear in court on June 28, 2007, his attorney asked that the warrant be stayed and that they pick a date for a Huntley hearing, whereupon the case was adjourned to September 19, 2007. In the interim, by notice of motion returnable on July 25, 2007, defendant moved for leave to reargue his omnibus motion. Since the September 19, 2007 adjourned date was made at the request, or consent, of defendant, the time period from June 28, 2007 to September 19, 2007 is excludable (see CPL 30.30 [4] [b]; People v Liotta, 79 NY2d 841, 843 [1992]). We note that the clock for speedy trial calculations in any event stopped for the time period following defendant's submission of his motion to reargue, pursuant to CPL 30.30 (4) (a), for a reasonable period of delay resulting from that motion.

September 19, 2007 to September 25, 2007

On the September 19, 2007 adjourned date, it was noted that the People had never responded to defendant's motion to reargue, which the People stated that they had never received, despite the fact that the affidavit of service for the motion states that the notice of motion and motion were served on the People, by mail, on July 2, 2007, and the date stamp on the motion shows that the District Court had received the motion on July 5, 2007. The District Court then instructed defense counsel to provide the People with another copy of the motion to reargue, and adjourned the case to October 4, 2007 for the People's opposition to that motion. In the interim, as of September 25, 2007, defendant had served and filed a motion to dismiss the accusatory instrument on speedy trial grounds, pursuant to CPL 30.30, which motion in any event served to stop the clock for speedy trial calculations pursuant to CPL 30.30 (4) (a).

Defendant's speedy trial motion dealt only the time period prior to the filing thereof, i.e., September 25, 2007. However, in a supplemental affirmation in support of defendant's motion to reargue, dated February 15, 2008, defense counsel requested that the District Court consider all the time, up until the date of the affirmation, in its determination of defendant's speedy trial motion. Moreover, we note that, during the hearing on the speedy trial motion, defense counsel several times orally requested that the District Court consider all the time up until the date of the hearing in its determination of defendant's speedy trial motion, and the People voiced no objection in regard to the inclusion of this time. In fact, the People participated in substantive discussions as to whether any time period subsequent to September 25, 2007 was excludable, and they submitted a second affirmation, dated March 6, 2008, in opposition to the speedy trial motion, in which they argued, among other things, that the time period from October 15, 2007 to March 6, 2008 was excludable. Therefore, the People waived any objection to defendant's failure to follow proper procedural requirements in regard to his new, oral motion to dismiss pursuant to CPL 30.30 (see e.g. People v Mezon, 80 NY2d 155 [1992]; People v Jennings, 69 NY2d 103, 113 [1986]). Consequently, a discussion of the relevant post-September 25, 2007 time periods follows.

Even though the record on appeal does not indicate whether the District Court specifically considered defendant's supplemental affirmation and the People's second affirmation, in any event, the parties made substantially the same arguments at the hearing.

September 25, 2007 to January 30, 2008

The People did not submit any opposition to defendant's motion to reargue his omnibus motion on the October 4, 2007 adjourned date. The District Court then adjourned the case to October 15, 2007 and informed the People that they would be charged with the time until they filed their opposition thereto. The People then filed opposition to defendant's speedy trial motion and, on October 15, 2007, defense counsel requested a two-week adjournment to October 31, 2007, on which date the case was adjourned to December 11, 2007 for the court's decision. On December 11, 2007, the court noted that defendant's motion to reargue should be determined by the same judge who had issued the order deciding the motion sought to be reargued and, therefore, adjourned the case to January 30, 2008, to be heard before that judge.

Since defendant's speedy trial motion was also pending before the District Court as of September 25, 2007, it could be argued that, despite the fact that, on October 4, 2007, the court had informed the People that they would be charged with the time until they filed their opposition to the motion to reargue, the time period from September 25, 2007 to January 30, 2008—during which time the motions were adjourned for opposition, reply, and decisions thereon—is excludable pursuant to CPL 30.30 (4) (a). However, we need not determine this issue since, as set forth below, we find that more than 90 days are chargeable to the People even without the inclusion of this time period.

January 30, 2008 to March 17, 2008

On January 30, 2008, the District Court again noted defendant's outstanding motion to reargue his omnibus motion. The parties agreed that the People would file their opposition to the motion to reargue by February 13, 2008 and that defendant would reply by February 15th, and the case was adjourned to March 6, 2008. The court stated that defendant's speedy trial motion would be held "in abeyance" until the motion to reargue was resolved. Since the District Court specifically stated that the speedy trial motion was being held "in abeyance" (i.e., a temporary inactivity or suspension) as of January 30, 2008, no time could be excluded by virtue of this motion since, pursuant to CPL 30.30 (4) (a), it was not "under consideration" by the court during this period of time (see e.g. People v Terrence, 163 AD2d 437 [1990] [the time during which a motion is actually under consideration by the court is excludable]). Therefore, as of January 30, 2008, defendant's motion to reargue was the only motion pending before the District Court for speedy trial purposes. Since the People did not serve or file their opposition to that motion on February 13, 2008, and, once again, did not provide a reasonable explanation for their failure to do so, the 22-day time period from February 13, 2008 to March 6, 2008 constitutes a period of unreasonable delay and is chargeable to the People (see People v Delosanto, 307 AD2d 298; People v Gonzalez, 266 AD2d 562; People v Hock, 40 Misc 3d 141[A], 2013 NY Slip Op 51505[U]; cf. CPL 30.30 [4] [a]).

We note that it could be argued that, as of January 30, 2008, the clock started for speedy trial calculations and, therefore, since the District Court had informed the People, on October 4, 2007, that they would be charged with the time until they filed their opposition to the motion to reargue, the time period of January 30, 2008 to February 13, 2008 is also chargeable to the People. However, we need not determine this issue since we find that more than 90 days are chargeable to the People, even without the inclusion of this time period.

As the People requested an adjournment on March 6, 2008, the 7-day adjournment to March 13, 2008 is likewise chargeable to the People. On March 13, 2008, the District Court adjourned the case to March 17, 2008. It is noted that, on March 17, 2008, the People finally informed the court that they would not file any opposition to defendant's motion to reargue. Moreover, the record on appeal does not indicate that the People had announced their readiness for trial as of March 17, 2008. Inasmuch as the People bear the burden of ensuring that the record of the proceeding where an adjournment is granted is sufficiently clear to enable a court deciding a CPL 30.30 motion to decide to whom that time should be charged (see People v Cortes, 80 NY2d 201, 215-216 [1992]), and court scheduling does not excuse the People from filing a certificate of readiness (see People v Collins, 82 NY2d 177, 181 [1993]; People v Smith, 82 NY2d 676, 678 [1993]), the 4-day adjournment from March 13, 2008 to March 17, 2008 is also chargeable to the People.

In view of the foregoing, we find that a total of at least 104 days is chargeable to the People.

Accordingly, the judgment of conviction is reversed, so much of the order dated May 21, 2008 as denied defendant's motion to dismiss the accusatory instrument on speedy trial grounds is vacated, defendant's motion is granted, and the accusatory instrument is dismissed.

Iannacci, J.P., Marano and Tolbert, JJ., concur.

Decision Date: July 24, 2014