Summary
In Beshiri, the court held that the People had been derelict in not responding to the defendant's motion nor requesting additional time to file (see Id.).
Summary of this case from People v. MartinezOpinion
Docket No. 2019BX019319
05-16-2022
The PEOPLE of the State of New York, Plaintiff, v. Erion BESHIRI, Defendant.
For the Defendant: The Legal Aid Society (Mark Formichelli, Esq.) For the People: Darcel Clark, District Attorney, Bronx County (ADA Christian Commelin)
For the Defendant: The Legal Aid Society (Mark Formichelli, Esq.)
For the People: Darcel Clark, District Attorney, Bronx County (ADA Christian Commelin)
Jeffrey Zimmerman, J.
This case reveals a not-so-well-kept secret of Bronx Criminal Court: lawyers routinely ignore judicially set motion deadlines. To slightly re-order the words of Daniel Patrick Moynihan, deviancy can be defined downward only so far before there are consequences. In this case, that point has been reached: the People's decision to blow off the Court's motion schedule must result in the blowing up of their 30.30 clock.
Defendant Erion Beshiri moves for dismissal of the charges against him on statutory speedy trial grounds. Specifically, the defendant alleges that the accusatory instrument is facially insufficient, rendering all statements of readiness (SORs) invalid. Defense also argues that the People should be charged additional speedy trial time for their delay in responding to the instant motion. The People oppose. After a careful consideration of the defendants’ motions, the People's responses, documents contained in the court file, and the transcripts from the proceedings, the Court finds that it need not reach the facial sufficiency issue, because even if the accusatory instrument is facially sufficient, at least one hundred and thirteen [113] days are chargeable to the People. The Court therefore GRANTS the defendant's motion.
SPEEDY TRIAL
The defendant is charged with Operating a Vehicle While Ability Impaired by Drugs ( VTL § 1192 [4] ), which is a class A misdemeanor. Accordingly, the People must be ready for trial within ninety days from the commencement of the criminal action ( CPL § 30.30 [1] [b] ). The parties both agree that Judge Johnson found, in her August 5, 2020 speedy trial decision, [78] days chargeable to the People. The parties also agree that at least [5] additional days after that decision was issued are chargeable to the People, from November 8, 2021 to November 10, 2021; then December 15, 2021 to December 17, 2021; and then January 5, 2021 to January 6, 2021.
Defense argues that [6] additional days (rather than [5] ) should be charged because the People asked for a two-day adjournment on January 5, 2022. The record from that appearance is clear, defense is correct, and [6] days are charged.
On March 2, 2022, the case was called in Part TP2. Defense indicated on the record they were filing the instant motion and a schedule was set. Defense did in fact file its motion on March 2, 2022. The assigned ADA was present in court and was instructed, again on the record, by this Court to respond by March 23, 2022.
The People did not respond by this date. Nor did the People ask for more time. The People were silent until they were emailed by the Court, almost one month later on April 21, 2022, about their outstanding response. The People asked for an additional day on April 21, 2022, which was granted. Ultimately, the People did not file their response until April 25, 2022.
Sadly, it is not uncommon in the Bronx for lawyers to ignore motion schedules. The Court recognizes that our world on East 161st Street sometimes seems insular, and certain local practices—many less than salutary—have become ingrained over time. However, as young lawyers appearing in TP2 are routinely told, Bronx Criminal Court is still "real court," and in "real court" when a lawyer isn't going to be able to meet a court-imposed deadline, the lawyer asks the Court for more time rather than simply filing the papers on his or her newly self-created "schedule." This is not too much to ask; filing papers when they are due, absent permission from the Court, should be table stakes.
The District Attorney's office is not the only offender here. Both public defender organizations in the Bronx routinely ignore dates for the filing of omnibus motions and waltz into court on the decision date to blithely request another motion schedule. Nor is it the Court's intention to call out the particular ADA in this case; he is undoubtedly following what he believes to be acceptable conduct based on what he has seen more senior lawyers in his office do.
Therefore, the 29-day period from when the People's response was due, until the date on which they ultimately requested an extension from the Court (after being contacted by the Court ) is chargeable to the People (see People v Gonzalez , 266 AD2d 562, 563 [2d Dept 1999] (delay in filing response to an omnibus motion "is properly charged to the People, since it constitutes a period of unreasonable delay in excess of the appropriate deadline to respond which was previously set by the court"); People v. Commack , 194 AD2d 619, 620 [2d Dept. 1993] (ten days properly charged to the People when they failed to respond to defendant's speedy trial motion until ten days after the court-ordered deadline)).
Although Gonzalez and Commack do not appear to require that the People's tardy response result in an actual delay in issuing a decision, it is worth noting that here the People's delay in responding did, in fact, lead to such an actual delay in the case: an additional adjournment was required for the Court to issue this decision, from the initial decision date of May 4, 2022 to a second decision date of May 27, 2022.
The People offer no explanation for the delay, only seeking, via email, to excuse the brevity of the response ultimately filed because the ADA was "swamped." The Court sympathizes with the workload of ADAs in an office that is suffering from high levels of attrition and low levels of morale, but this doesn't excuse failing to make a request for more time. This Court routinely grants timely requests for extensions but will not do so retroactively. This Court strives to treat all parties with respect and expects the same from the litigants appearing before it. Given these circumstances, the [29] day period of delay from the deadline for response set by this Court—March 23, 2022—to the date an extension was finally requested—April 21, 2022—should be charged to the People.
Arguably, the period between April 22, 2022 — the date to which an extension was granted — and April 25, 2022, when the response was ultimately filed, should also be charged to the People. However, the Court charitably credits an April 25 after-the-fact email from the ADA saying he was out sick on April 22, and does not charge these additional three days.
Accordingly, at least the previously determined [78] days plus [6] days and [29] days, or one-hundred and thirteen [113] days are charged, more than the statutorily permitted 90 days.
CONCLUSION
Based on the forgoing, the Court grants the defendant's motion to dismiss pursuant to CPL § 30.30 [1] [b]. This constitutes the decision and order of this Court.