Opinion
No. 2009NY006006.
2010-09-8
The PEOPLE of the State of New York v. Roosevelt BARNES, Defendant.
Robert T. Perry Brooklyn, for the Motion. Cyrus R. Vance, Jr., District Attorney New York County, Michael Albanese, Esq., of Counsel, New York, Opposing the Motion.
Robert T. Perry Brooklyn, for the Motion. Cyrus R. Vance, Jr., District Attorney New York County, Michael Albanese, Esq., of Counsel, New York, Opposing the Motion.
MICHAEL J. YAVINSKY, J.
The defendant, Roosevelt Barnes, stands charged by information with one count of Endangering the Welfare of a Child (PL § 260.10[1] ).
By papers filed June 30, 2010, the defendant moves to dismiss the information filed against him on the grounds that the People have denied him his statutory right to a speedy trial. Specifically, the defendant claims that the People were not ready for trial within ninety days as CPL § 30.30 requires. By papers filed August 11, 2010, the People oppose the motion, claiming that only 88 days are properly charged to them. For the reasons that follow, the defendant's motion is denied.
The sole count charged on the information, Endangering the Welfare of a Child, is a class A misdemeanor which is punishable by a term of incarceration not to exceed one year. Accordingly, the People are required to be ready for trial within ninety days of the defendant's arraignment, less any excludable time. CPL § 30.30(1)(b). The People are considered to be ready for trial when they communicate their actual readiness in open court or file a certificate of actual readiness with the court and serve a copy on the defendant's attorney. See People v. Kendzia, 64 N.Y.2d 331 (1985).
The defendant was arraigned on January 22, 2009. The court adjourned the case to February 23, 2009 for the People to file the supporting deposition of R.B.
Because the day on which an action is commenced is not chargeable ( see People v. Stiles, 70 N.Y.2d 765 [1987] ), the People are charged with 31 days as pre-readiness delay. [31 total days charged]
The name of the complainant child has been redacted and modified for purposes of confidentiality.
On February 23, 2009, the defendant did not appear in court, and a bench warrant was issued. The period from the issuance of the warrant until the defendant's return is excludable. SeeCPL § 30.30(4)(c)(ii). [31 total days charged]
On February 27, 2009, the People filed off-calendar a superseding information and a certificate of readiness but sent them to the wrong address for defense counsel. The filing of these documents and the erroneous mailing, however, do not impact the amount of chargeable time in this case, as the adjournment during which they were filed and served is excludable on other grounds.
On March 12, 2009, the defendant returned to court. At that time, the court set a schedule for the defendant to file motions and adjourned the case to May 12, 2009 for response and decision. This period is excludable because the People are entitled to a reasonable period of time to prepare for trial after the defendant returns on a warrant ( see People v. Muhanimac, 181 A.D.2d 464, 465–66 [1st Dept 1992] ) and because this adjournment was for the purpose of filing motions ( seeCPL § 30.30[4][a] ). [31 total days charged]
On May 12, 2009, the court rendered a decision on the defendant's motion and adjourned the case to June 23, 2009 for trial. This adjournment is excludable because the People are entitled to a reasonable adjournment to prepare for trial after motion practice. SeeCPL § 30.30(4)(a); People v. Phillips, 70 AD3d 562, 562 (1st Dept 2010); People v. Green, 90 A.D.2d 705, 706 (1st Dept 1982); People v. Taylor, 16 Misc.3d 339, 341–342 (Crim Ct, New York County 2007). [31 total days charged]
On June 23, 2009, the People were not ready for trial. The defendant then filed and served a motion to dismiss the information for facial insufficiency. At that time, the court adjourned the case to August 11, 2009 for response and decision. Since this adjournment was for the purpose of filing motions, it represents excludable time. SeeCPL § 30.30(4)(a). [31 total days charged]
On August 11, 2009, the court rendered a decision on the defendant's motion, dismissing two counts of the information for facial insufficiency. The court then adjourned the case to October 5, 2009 for trial. This adjournment is excludable because the People are entitled to a reasonable adjournment to prepare for trial after motion practice. SeeCPL § 30.30(4)(a); People v. Phillips, 70 AD3d at 562;People v. Green, 90 A.D.2d at 706;People v. Taylor, 16 Misc.3d at 341–342. [31 total days charged]
On October 5, 2009, the People were ready for trial. The matter, however, was adjourned to November 9, 2009 for the court to conduct an in camera inspection of records submitted by the Administration for Children's Services pursuant to a subpoena from defense counsel. Because this adjournment was at the request of the defendant, it represents excludable time. SeeCPL § 30.30(4)(b). [31 total days charged]
On November 9, 2009, the People announced their readiness for trial. However, no trial parts were available on that date, and the court adjourned the case to January 25, 2010 for trial. As such, this adjournment is excludable. See People v. Chavis, 91 N.Y.2d 500, 505 (1998). [31 total days charged]
On January 25, 2010, the defendant did not appear in court, and a bench warrant was issued. The period from the issuance of the warrant until the defendant's return is excludable. SeeCPL § 30.30(4)(c)(ii). [31 total days charged]
On January 28, 2010, the defendant returned to court. The court then adjourned the case to February 18, 2010 for trial. This period is excludable because the People are entitled to a reasonable period of time to prepare for trial after the defendant returns on a warrant. See People v. Muhanimac, 181 A.D.2d at 465–66. [31 total days charged]
The following adjournment is at the crux of the defendant's motion.
On February 18, 2010, the People indicated that they were not ready for trial because two material witnesses were unavailable and requested that the case be adjourned for two weeks. Notwithstanding this request, the court adjourned the matter for 11 days to March 1, 2010 for trial.
The People argue that this adjournment is excludable because it was occasioned by exceptional circumstances pursuant to CPL § 30.30(4)(g). Specifically, the Assigned Assistant District Attorney asserts in his affirmation in response to the defendant's motion that beginning on February 8, 2010 and continuing for several days he made multiple attempts to locate the two witnesses, whom he states are 16 and 19 years old. He claims he contacted the witnesses' last known custodian, Ms. Kimtresse Young, and learned that the witnesses had requested a transfer in custody from Ms. Young to a foster parent. Although he requested information about the witnesses' current whereabouts from Ms. Young, she refused to provide it but did give him the contact information for the witnesses' social workers. He asserts that, despite leaving several messages for the social workers, he did not receive a return telephone call before the next adjournment date of February 18, 2010. Therefore, he states he was unable to declare ready for trial on that date. According to the Assigned Assistant District Attorney, he continued to reach out to the social workers and finally received a return telephone call from one of them on March 8, 2010. He states that he was thereafter able to contact the foster home and make arrangements with the witnesses for trial.
Pursuant to CPL § 30.30(4)(g)(i), delay resulting from a continuance granted at the request of a district attorney constitutes exceptional circumstances and therefore is excludable if “the continuance is granted because of the unavailability of evidence material to the people's case, ... 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.” Notably, “[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30(4)(g),' since it is impossible to anticipate every situation that might warrant tolling of the speedy trial time period' (People v. Smietana, 98 N.Y.2d 336, 341, 746 N.Y.S.2d 678, 774 N.E.2d 743 [2002] ).” People v. Price, 14 NY3d 61, 64 (2010). The Court of Appeals did note, however, that the legislative intent of CPL § 30.30 is to prevent prosecutorial inaction and therefore, stated that application of this exclusion is permitted “only when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution.” Id (citations omitted). That is, to invoke this exception, the People must demonstrate “credible, vigorous activity” in pursuing their investigation. People v. Washington, 43 N.Y.2d 772, 774 (1977).
Here, the court finds, and the defendant does not contest, that the two witnesses are material to the People's case. Moreover, the Assigned Assistant District Attorney's affirmation demonstrates that the People exercised due diligence in attempting to locate the two witnesses. See People v. Belgrave, 226 A.D.2d 550 (2d Dept 1996); see also People v. Smith, 24 Misc.3d 1247(A) (Crim Ct, Richmond County 2009). Further, taking the circumstances described by the Assigned Assistant District Attorney, it was reasonable to believe that the witnesses would be located within a reasonable period of time. Accordingly, this adjournment is excludable. See CPL § 30 .30(4)(g)(i). [31 total days charged]
On March 1, 2010, the People announced their readiness for trial. The defendant indicated that he was not ready to proceed to trial at that time because he had a recent medical incident. Thus, at the request of the defendant, the court adjourned the matter to April 20, 2010 for trial. Because this adjournment was granted at the request of the defendant, this period is excludable. SeeCPL § 30.30(4)(b). [31 total days charged]
On April 20, 2010, the People were not ready for trial. The People did not request a specific adjournment date, and the case was adjourned to May 5, 2010 for trial. Accordingly, the entire 15–day adjournment is chargeable to the People. [46 total days charged]
On May 5, 2010, the People again announced that they were not ready for trial. The People did not request a specific adjournment date, and the case was adjourned to June 30, 2010 for trial. On June 15, 2010, the People served and filed a certificate of readiness off-calendar. This communication of readiness tolled the speedy trial clock, and therefore, the 15 days from that date through June 30, 2010 are excludable. Accordingly, the People are charged with 41 days for this adjournment. [87 total days charged]
On June 30, 2010, the People announced that they were ready for trial. At that time, the defendant filed the instant motion. The court then directed the People to file a response by July 28, 2010, and adjourned the matter to September 8, 2010 for its decision on the motion as well as to pick a date for trial. The defendant contends that the People should be charged from July 28, 2010 until the filing of their response on August 12, 2010. In support, the defendant relies upon People v. Reid, 245 A.D.2d 44 (1st Dept 1997), wherein the Appellate Division, First Department, held that the People were properly charged for their delays in responding to the defendant's motion, preparing for a hearing, and producing the defendant for the hearing because such lateness prevented resolution of the motion for many months. Initially, this court notes that the People actually filed their response on August 11, 2010, not August 12, 2010. Moreover, unlike in Reid, the defendant has not been prejudiced by the People's delay in filing their response, as the instant decision has not been delayed by the People's late filing. Accordingly, this court finds that this adjournment is excludable because it was occasioned by motion practice. SeeCPL § 30.30(4)(a). [87 total days charged]
Thus, the court finds that there are 87 chargeable days to date .
Since fewer than ninety days are charged, the defendant's motion to dismiss the information pursuant to CPL § 30.30 must be denied.
The foregoing constitutes the opinion, decision, and order of the court.