Opinion
No. CR-04634-22
06-23-2023
People of the State of New York v. James S. Buswell, Defendant.
Scott D. McNamara, Oneida County District Attorney (Rachael McNamara, Esq., Assistant District Attorney) for the People Corey A. Zennnamo, Esq. (Zennamo Litigation & Advocacy, PLLC) for the Defendant
Unpublished Opinion
Scott D. McNamara, Oneida County District Attorney (Rachael McNamara, Esq., Assistant District Attorney) for the People
Corey A. Zennnamo, Esq. (Zennamo Litigation & Advocacy, PLLC) for the Defendant
Joseph A. Saba, Jr., J.
On or about October 7, 2022 the defendant was charged with Harassment in the Second Degree: Physical Contact in violation of Penal Law §240.26(1). Thereafter, on January 6, 2023 the defendant filed a "Notice of Motion" along with an attorney affirmation seeking dismissal of the accusatory instrument as being facially insufficient, request for disclosure of agreements between the prosecution and witnesses, Sandoval / Ventimiglia hearing(s), production of Brady material, and permission to submit further motions. Upon the People submitting a responding affirmation on February 9, 2023, the court rendered a "Memorandum Decision" on March 2, 2023. Within the decision the court found the accusatory instrument was facially sufficient and denied the request for certain material as production of same is governed by the automatic discovery provisions of Article 245 of the CPL. The decision further noted the People have fifteen days prior to a scheduled trial date, to provide their intention to introduce evidence of the defendant's prior bad acts or criminal convictions per CPL §245.10(1)(b).
On February 16, 2023, the defendant filed a "Notice of Motion" seeking dismissal of the action due to the certificate of compliance submitted by the People being "illusory". The People filed an affirmation opposing the relief requested on March 10, 2023. On March 24, 2023 the court issued a written decision finding the certificate of compliance filed by the People on December 16, 2022 was not illusory despite a witness's name to the alleged incident having not been listed within the certificate itself. The court relied upon the fact that the witness's name was contained in body-worn camera footage as well as include in additional documentation. The defendant had the full opportunity to investigate and speak with this person as the individual's name was in the discovery materials provided. Based upon the People having adequately defended the validity of their certificate of compliance, they were directed to file a supplemental certificate within ten days of the decision and list the subject witnesses's name and contact information. The court notes that on April 3, 2023 the prosecution filed a "Supplemental Certificate of Compliance Under CPL 245.50(1)" and contained within the addendum entitled "Parties with Relevant Information & Witness List" an individual by the name of Michael Horning was set forth along with an address of 1133 Mohawk Street in Utica. The People also set forth that this person was not going to be called as a witness at the time of trial. The court also ruled that it would be necessary to conduct a hearing as it specifically related to the Dunkin Donuts surveillance camera footage in controvert. The defendant claimed this camera footage was not provided by the prosecution, and the contents would ultimately "confirm or prove contrary" the allegations in the accusatory. A hearing was then scheduled for May 24, 2023 and later adjourned to June 14, 2023, to determine whether or not the video was ever relied upon by the prosecution this matter or if it was ever in the possession, custody or control of law enforcement for discovery purposes. A determination on the issues presented in this regard are contained herein.
It is further noted, that prior to the above-referenced hearing being conducted, the defendant filed a subsequent omnibus motion on April 14, 2023 once again seeking a Sandoval / Ventimiglia hearing(s), production of exculpatory / Brady material, and disclosure of plea agreements with potential prosecution witnesses. The only issues made part of this motion, which were not addressed in the court's ruling dated March 2, 2023, was the request to suppress statement made by the defendant or in the alternative a Huntley hearing, along with dismissal of the action based upon a speedy trial violation pursuant to CPL §30.30. The People then filed a responding affirmation on May 5, 2023. These issues were held in abeyance as a finding in favor of the defendant, as it related to the Dunkin Donuts video, would make any subsequent §30.30 or §710.30 issues moot. These issues will be addressed at the conclusion of the court's findings as it pertains to the Dunkin Donuts surveillance video.
As previously scheduled the hearing commenced on June 14, 2023 to determine the validity of the certificate of compliance. At this time the People called one witness, namely Officer Patrick Wuest.
Summary of Testimony
Officer Patrick Wuest testified that he is currently, and has been employed by the Office of the Attorney General since December of 2022. Prior to that time, the witness stated he worked for the Utica Police Department for approximately three years as a patrol officer. Officer Wuest then testified that while on duty on October 7, 2022 he responded to a call related to an incident involving harassment at the Dunkin Donuts on Mohawk Street. The Officer further stated that upon arrival at this location he spoke with a woman outside the building who was "sobbing" and claimed she was "harassed" while inside the Dunkin Donuts by another individual. As a result of this allegation, a criminal investigation was undertaken prior to the defendant being arrested.
The witness then testified that he did not review, receive or collect any surveillance footage which was taken from inside the Dunkin Donuts location on October 7, 2022. The witness further testified that on the day of the incident, he was initially told there was no video camera footage taken at this location. However, Officer Wuest then stated he was told at a later time that surveillance video footage was taken that day, but it could only be obtained by a restaurant manager. Officer Wuest added that he was advised no managers were on duty during the time the investigation was being conducted, which impeded his ability to review the contents of the video recording.
On cross-examination, Officer Wuest testified that he has conducted "a couple hundred" investigations throughout his law enforcement career. He added that some of the investigations have included obtaining, along with the review of surveillance video footage. The Officer also stated "sometimes" there is a difference between eye witness testimony of an incident and what may be captured on video / surveillance footage. He also said that on occasion, it is beneficial that such material is collected during the course of an investigation. Officer Wuest then testified he made an attempt to view the surveillance footage in question however, the employee on duty stated that a manager would have to approve of the viewing. The witness further stated he no legal authority to unilaterally go and view the footage that may have been recorded of the incident. Officer Wuest then stated he did not return to the Dunkin Donuts at a later time to obtain any video footage which may have captured the alleged incident. The Officer explained this was not done as the victim had provided the requisite information to file charges against the defendant. The witness added that it is unknown as to what, if anything, the surveillance video may have depicted.
Upon conclusion of testimony, the court heard oral argument from each of the respective parties. The defendant's substantive argument is that the People failed to fulfil their discovery obligations under CPL §245 by not taking affirmative steps to obtain and secure the surveillance video subject to the hearing. The defendant further asserted that law enforcement has a duty to obtain any evidence, such as surveillance footage, which may contain exculpatory evidence in accordance with the automatic discovery laws. The People argued the video in controvert has never been in their care, custody or control and that Dunkin Donuts is a third party not under their purview. The prosecution further added that Officer Wuest conducted an investigation, as he deemed to be appropriate, which did not include viewing or collecting the video footage. The Peopled added the Officer had no obligation to do so and the defendant's allegation that the video contained exculpatory evidence is merely speculative in nature. Based upon such arguments, the People concluded by stating there was no requirement to obtain and in turn, disclose such material. The prosecution also added the defendant had the ability to independently obtain any such surveillance video.
Findings of Fact and Conclusions of Law
As background, on January 1, 2020 the provisions of CPL Article §245 became effective in New York State which require the People to disclose information referred to as "automatic discovery" without the necessity of filing discovery demands. The specifics of the automatic discovery provisions are made part of CPL §245.20(1), which include twenty-one categories of items. These items are to be produced to the defendant "as soon as practical", and no later than the times prescribed by §245.10(1)(a)(ii). Upon enactment of the statute, disclosure was required to occur within a fifteen-day period. This time frame was subsequently extended on May 3, 2020, upon amendment of the law, which now allows for discovery obligations to be fulfilled within thirty-five days, upon the defendant being arraigned on an indictment, superior court information, prosecutor's information, information, simplified information, misdemeanor complaint or felony complaint. The automatic discovery obligations further require the People to disclose "all known" materials involved in the case, and to certify "due diligence" was exercised in determining the existence of such materials.
As the People's obligations are set forth above, compliance with the statute must be solidified by the filing of a certificate which announces readiness and declares that all automatic discovery has been produced. (CPL §245.50(1)) The statute states:
"When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided."
It is clear by the plain language of the statute, a certificate of compliance itself must state disclosure has been made upon exercising due diligence, and reasonable inquires being made as to whether certain information exists. Since the enactment of CPL §245, there has been consistency between the courts, which have held, the People are required to "comply with all discovery obligations outlined in section 245.20, as a prerequisite to their filing of a valid statement of readiness." (People v. Villamar, 69 Misc.3d 842 [Crim Ct, New York County 2020]) Furthermore, the production of all automatic discovery is considered a "condition precedent" to the People filing a proper certificate of compliance. (People v. Napolitano, 67 Misc.3d 1241 (A) [Sup. Ct. NY County 2020])
With this statutory framework in mind, an inquiry needs to be made as to whether the Dunkin Donuts surveillance video was required to be provided to the defendant as part of their discovery obligations. The initially inquiry begins with CPL §245.20(1) which states:
Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to:
As it relates to the material subject to this hearing, the statute goes onto state:
(g) All tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident, and a designation by the prosecutor as to which of the recordings under this paragraph the prosecution intends to introduce at trial or a pre-trial hearing. If the discoverable materials under this paragraph exceed ten hours in total length, the prosecution may disclose only the recordings that it intends to introduce at trial or a pre-trial hearing, along with a list of the source and approximate quantity of other recordings and their general subject matter if known, and the defendant shall have the right upon request to obtain recordings not previously disclosed. The prosecution shall disclose the requested materials as soon as practicable and not less than fifteen calendar days after the defendant's request, unless an order is obtained pursuant to section 245.70 of this article. The prosecution may withhold the names and identifying information of any person who contacted 911 without the need for a protective order pursuant to section 245.70 of this article, provided, however, the defendant may move the court for disclosure. If the prosecution intends to call such person as a witness at a trial or hearing, the prosecution must disclose the name and contact information of such witness no later than fifteen days before such trial or hearing, or as soon as practicable.
In addition, applicable portions of CPL §245.20(2) states:
Duties of the prosecution. The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution.
It is noted that upon examining whether due diligence was exercised, good faith may be accomplished by the People upon "recounting the steps they took to obtain certain materials or ascertain the existence thereof, explaining the reasons why particular items are outstanding, lost or destroyed, and submitting their good-faith arguments for why certain materials are not discoverable under the statute." (People v. Georgiopoulos, 71 Misc.3d 1215 (A) [Sup. Ct., 2021]) In this regard, the People have satisfied their burden by demonstrating why certain materials, i.e. Dunkin Donuts surveillance video purportedly recorded on the date of the alleged incident, is not discoverable under the law and that the certificate of compliance was filed in good faith after having exercised due diligence. The court makes such finding upon conducting an analysis of the facts, and applying the standard as set forth in Article 245. The factors examined were (1) whether the alleged video relates to the subject matter of the case and if so (2) was the video ever in the possession, custody or control of the prosecution or an entity under their direction or control. In the event the material sought does not meet this criteria, it is not subject to discovery.
First, the contents of the Dunkin Donuts surveillance footage is unknown, as it was not relied upon, viewed nor obtained by Officer Wuest during the course of the investigation into the alleged criminal activity. As such, without knowing the contents of the video or even being able to unequivocally determine that the camera was recording at the time of the alleged incident, the court cannot find such material relates to the subject matter of this case. Secondly, even if there was video footage, and it related to the underlying charge, such material does not fall within the purview of being in the "possession, custody or control of the prosecution or persons under the prosecution's direction or control" as required by CPL §245.20(1). Being that the video was never possessed by the People, and only maintained by Dunkin Donuts, the contents therein were outside the scope of law enforcement control and not subject to discovery.
Setting aside the provisions of CPL §245.20(1) a further review of CPL §245.20(2) must be undertaken, as this is the main substantive argument made by the defendant. The defendant contends the language contained in CPL §245.20(2) places an obligation upon all law enforcement agencies conducting an investigating into criminal behavior, to view, obtain, and take control over any purported surveillance footage of a crime. The theory promulgated by the defendant, would mandate investigative units to inquire whether a private business had surveillance video of alleged criminal conduct. In essence, the failure to make such inquiry and take further affirmative actions to secure such footage would run contrary to the discovery laws and result in a certificate of compliance being void. The court disagrees, as the plain reading of §245.20(2) does not cast law enforcement with this type of obligation nor dictates how a criminal investigation is to be undertaken. While this portion of the statute states the prosecution must make efforts to ascertain the existence of discoverable material, such material must first be discoverable as outlined in the provisions of CPL §245.20(1). The video footage in controvert unequivocally does not fall within the provisions of CPL 245.20(1), as it was never in the possession, custody or control of the prosecution. Thus, it is not subject to discovery.
In addition, the court would be remiss by not noting, the defendant further fails to recognize that the prosecution is not required to obtain material which can only be accessed via the issuance of a subpoena duces tecum or information which the defendant may obtain on their own. (§245.20(2)) The defendant had all rights to make independent efforts to contact the management at Dunkin Donuts to obtain any surveillance video taken on the date in question. The record is devoid any information that the defendant chose to pursue this avenue while the case has been pending.
Based upon a review of the record, the testimony of Officer Wuest, along with the motion papers and affirmations submitted, the court finds the People have demonstrated the video in controvert is not subject to automatic discovery. In addition, the prosecution has met their statutory obligation requiring the exercise of due diligence and good faith efforts prior to the filing of their certificate of compliance in its entirety. The record does not support anything to the contrary and as such, the defendant's motion to declare the certificate of compliance as being illusory is denied.
Remaining Speedy Trial Arguments
Based upon the findings above, the court must now consider the remaining speedy trial issues as set forth in the defendant's omnibus motion(s) submitted on February 16, 2023 and April 14, 2023. Contained within the defendant's motion dated February 16, 2023 it is argued that "the court MUST grant a dismissal pursuant to CPL 30.30 where the People do not provide a proper Certificate of Compliance for readiness purposes". The defendant concludes the speedy trial argument by stating:
"Accordingly, it is respectfully requested that the Court dismiss the matter against Mr. Buswell, pursuant to CPL §§ 245.50(1) and 245.80 as the People have acted in bad faith in refusing to turn over mandated discovery, or pursuant to CPL §30.30 for their failure to prepare a proper certificate of compliance within 90 days of the defendant's arrest."
The court notes the defendant is charged with a violation, wherein a 30 day period applies for speedy trial purposes. The 30 day period will be utilized upon making a determination on this issue.
It is clear the defendant was relying upon the court finding that the Dunkin Donuts video was discoverable, and the People's failure to provide this material would in turn deem the compliance certificate as being "invalid". If the court had made such a determination, all of the time after December 16, 2022 would have been chargeable to the prosecution resulting in a speedy trial violation. However, as set forth above, the court has determined the certificate of compliance filed by the People is in fact valid, it is not illusory, and all discovery obligations have been complied with by the People pursuant to Article 245 of the CPL.
The subsequent omnibus motion filed by the defendant on April 14, 2023, merely continues the same CPL §30.30 arguments as in the February 16, 2023 filing. The motion further fails to recognize the necessity of a hearing as it related to the Dunkin Donuts video prior to the review of any other speedy trial violation claims. Without a hearing being conducted and a final determination on the Dunkin Donuts video being made, a calculation of whether other time frames were excludable would be merely an exercise of futility.
The People set forth in their responding affirmation dated March 10, 2023 that the certificate of compliance filed on December 16, 2022 was not illusory, and proper readiness was announced on said date. This response was based upon the assertions that the initial discovery disclosure was not complete due to the surveillance video along with the name of a potential witness not being disclosed. The court notes, this response was appropriate as the only argument made by the defendant at that time, was that a §30.30 violation occurred due to the compliance certificate being incomplete / invalid.
Contained in the People's affirmation dated May 5, 2023, which was in response to the defendant's April 14, 2023 filing, the prosecution further articulated time which should be excluded for speedy trial purposes. The People set forth that the defendant was arraigned on October 27, 2022, and an adjournment was requested by the defendant at that time. Upon the court granting the continuance, the case was then scheduled to be heard on December 9, 2022. The People argue that based on the defendant requesting an adjournment, this period of time should be excluded for speedy trial purposes. The Assistant District Attorney further concedes that the period between December 9, 2022 and when the certificate of compliance was filed on December 16, 2022 is chargeable to the prosecution. In all, the People state they should be charged with 7 days prior to readiness being announced for speedy trial purposes.
Findings of Fact & Conclusions of Law
a. Pre-readiness calculation
It has long been held that a defendant meets their initial burden on a speedy trial motion "by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period" (People v Luperon, 85 N.Y.2d 71 [1995]; People v. Walton, 165 Misc.2d 672 [Crim. Ct., Richmond Co. 1995]). The burden then shifts to the People to identify the exclusions upon which they may rely upon. In addition, although a criminal action commences with the filing of the accusatory instrument, counting for speedy trial purposes starts the next day. (People v Stiles, 70 N.Y.2d 765 [1987]) Furthermore, it has been a long-standing principle that upon an appearance ticket being issued, the time between commencement of an action and the time the defendant is directed to appear for arraignment, is excludable for speedy trial purposes. (see CPL § 30.30(7)(b); People v. Parris, 79 N.Y.2d 69) People v Hauben, 12 Misc.3d 1172 (a) [Nassau Dist. Ct. 2006]; People v Raglin, 175 Misc.2d 1003 [Crim. Ct., Queens Co. 1988]). It should also be noted, that whether the People have satisfied their speedy trial obligations "is generally determined by computing the time elapsed between the filing of the accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any post-readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion" (People v Cortes, 80 N.Y.2d 201, 208).
The court will review the periods of time in controvert, in determining whether or not any time should be excluded for speedy trial purposes. An action is commenced by the filing of an accusatory instrument (CPL §1.20[17]). As such, the period of time subject to initial review is from the time between the action being commenced on October 11, 2022 until readiness being announced by the filing of a compliance certificate. This certificate has been deemed valid as set forth above. Although a criminal action commences with the filing of the accusatory instrument, counting for speedy trial purposes starts the next day. (People v Stiles, 70 N.Y.2d 765 [1975]) Since there are 66 days from when the action commenced and readiness was announced on December 16, 2022, the People need to show 36 days are to be excluded for speedy trial purposes.
First, the court notes, CPL §30.30(7)(b) states "where a defendant has been served with an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in local criminal court in response to the ticket." Clearly, the time between the issuance of the appearance ticket and arraignment of the defendant must be excluded for speedy trial purposes pursuant to CPL §30.30(7)(b). This results in 16 days being excluded as the action was commenced on October 11, 2022 and the defendant appeared before the court for arraignment. Next, the court will address the period of time between arraignment and the adjourned date of December 9, 2022. People argue that pursuant to CPL §30.30(4)(b) this period should be excluded. This section of the law states:
"the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his or her counsel. The court may grant such a continuance only if it is satisfied that postponement is in the interest of justice, taking into account the public interest in the prompt dispositions of criminal charges. A defendant without counsel must not be deemed to have consented to a continuance unless he or she has been advised by the court of his or her rights under these rules and the effect of his consent, which must be done on the record in open court"
It has long been held, that "consent to an adjournment must be clearly expressed by the defendant or defense counsel to relieve the People of the responsibility for that portion of the delay." (People v. Liotta, 79 N.Y.2d 841 [1992]) In addition, courts have found that adjournments agreed to by the defense "must be clearly expressed" in order to excuse such period of time from being counted against the People. The mere failure to object to an adjournment does not constitute consent. (People v. Smith, 82 N.Y.2d 676 [1993]) However, defense counsel's failure to object to the court's statement that a case would be continued at the request of defense counsel does not result in such time being charged to the People. (People v. Yanez, 218 A.D.2d 719 [2nd Dept. 1995]) Upon review of the record, the court unequivocally finds that the defendant consented to the adjournment on October 27, 2022. It was clearly set forth on the record that the adjournment was granted "at the request of the defendant" without any objection by defense counsel. Thus, the period between arraignment and December 9, 2022 should not be charged to the People, resulting in 43 days of time to be excluded for speedy trial purposes.
The People recognize the period between December 9, 2022 and the filing of their certificate of compliance on December 16, 2022 is not subject to any exclusions and is chargeable to the prosecution. Based upon the analysis thus far, the court finds there are 59 [16 pre-arraignment days plus 43 pos-arraignment upon consent] days which should be excluded for speedy trial purposes resulting in 7 days being charged to the People between commencement of the action and readiness being announced.
b. Post-readiness Calculation
Turning to any post-readiness time which should be charged to the People, the defendant merely asserts in the filing dated April 14, 2023, that "the People failed to articulate any justification for delays attributable to them as a result of the February 10, 2023 motion". This argument fails to realize the vast majority of any delay in these proceedings is a result of the extensive motion practice by the defendant. Specifically, beginning with a motion to dismiss for facial sufficiency filed on January 6, 2023, followed by a motion to strike the certificate of compliance submitted on February 16, 2023 and a subsequent speedy trial / omnibus motion being filed on April 14, 2023. All of which were answered by the People, along with timely determinations made by this court. It is further noted, a hearing was conducted on June 14, 2023 as it related to the defendant's speedy trial argument as to whether the compliance certificate filed by the People was valid. This required the testimony of the Officer who investigated the incident subject to this proceeding.
It has long been held, as it relates to any post-readiness delay, that the time expended for motion practice along with any hearings which ensue are not chargeable to the People. This includes a reasonable period of time to respond to defense motions. (People v. Brown, 227 A.D.2d 237 [1st Dept., 1996] In addition, the court is afforded discretion for the purpose of conducting pre-trial conferences, and such time should not be charged to the People. While neither the defendant nor the People clearly articulate arguments pertaining to post-readiness time, the court will conduct an analysis of such, and make findings in this regard.
December 16, 2022 - January 20, 2023 - on December 16, 2022 the People filed their Certificate of Compliance and at that time defense counsel stated motions were going to be filed. The matter was adjourned until January 20, 2023 for said purpose along with certificate of compliance review. The period of time between December 16, 2022 and January 20, 2023, is excludable as the purpose was for defense motions to be filed. (CPL §30.30(4)(a); People v. Piquet, 46 A.D.3d 1438 [4th Dept. 2007]; People v. Reed, 19 A.D.3d 312 [1st Dept. 2005]) It is noted, the defendant filed the motion to dismiss on January 6, 2023 and the matter was heard on January 20, 2023 as previously calendared.
January 20, 2023 - February 10, 2023 - on January 20, 2023 the People requested an adjournment for the purpose of replying to the defendant's motion to dismiss based upon facial insufficiency. The proceedings were adjourned until February 10, 2023, for the People to do so. Said time is not attributable to the People as the period during which the prosecution needs a reasonable time to prepare a response to defendant's motion is excludable.
February 10, 2023 - February 17, 2023 - on February 10, 2023 the court noted that the People filed a reply to the defendant's motion to dismiss for facial insufficiency on February 9, 2023. The matter was adjourned to allow the court time to render a decision. A decision was issued on March 2, 2023, and as such the period between February 17, 2023 and March 2, 2023, is not chargeable to the People as the time required for the court to consider and rule on motions is excludable. (People v. Rucker, 132 A.D.2d 968 [4th Dept., 1987]
February 17, 2023 - March 3, 2023 - on February 17, 2023 the court acknowledged receipt of a defendant's additional motion to dismiss based upon the certificate of compliance being illusory. Proceedings were adjourned to March 3, 2023 to afford the People an opportunity to reply. As set forth above, said time is not attributable to the People as the period during which the prosecution needs a reasonable amount of time to prepare a response to a defendant's motion is excludable. In addition, the court was still in the process of determining the facial sufficiency motion.
March 3, 2023 - March 24, 2023 - on March 3, 2023 the People requested additional time to reply to the defendant's omnibus motion. The court found that since the People did not file a response to the defendant's motion within the two weeks as afforded, any further continuance for said purpose would be charged to the People. The court directed the People to file their response by March 10, 2023. As set forth on the record, the time between March 3, 2023 and March 10, 2023 would be charged to the People and it is noted, the prosecution did in fact file a response in the time frame required. As such, the People are hereby charged with 7 days of post-readiness time due to the delay in filing a timely response to the defendant's motion.
Upon the People filing their answering papers on March 10, 2023, a decision was issued on March 24, 2023. The period between March 10, 2023 and March 24, 2023 is excludable as this time was required for the court to render a decision on the defendant's motion.
March 24, 2023 to June 14, 2023 - on March 24, 2023 the court noted on the record, that a decision on the defendant's motion was made and would be circulated amongst counsel on March 27, 2023. Contained within the court's decision on March 24, 2023 it was held that a hearing was necessary to determine whether or not the certificate of compliance was illusory based upon the defendant's argument that the Dunkin Donuts surveillance camera footage was not provided by the People. The court further notes that a reasonable delay between ordering a hearing on a defense motion, and holding the hearing itself has been found excludable. The court in People v. Asmal-Aucapina, 21 Misc.3d 168 [Crim. Ct., New York County] found that "when a motion court orders hearings to resolve pre-trial suppression issues and adjourns the matter to a date that is convenient to the court after factoring in its own calendar congestion, such adjournment is not a delay occasioned by the People, and such time is not chargeable to them under CPL 30.30(4)(a)." While the advent of having to conduct hearings to determine whether or not certain information is discoverable under Article 245 of the CPL is a fairly recent development, the court finds no reason not to adopt the same theory as it applies to these proceedings. As such, all of the time from March 24, 2023 until June 14, 2023 should not be charged to the People for such reasons. In determining that such period of time was reasonable to schedule a hearing on this issue, it is noted that an earlier date was scheduled but needed to be adjourned upon the defendant's request.
While there are only 7 days of post-readiness time charged to the People, as set forth above, the court will further review the subsequent adjournments which only further substantiates this court's ruling that a speedy trial violation has not occurred.
March 24, 2023 - April 14, 2023 - May 5, 2023 - on April 14, 2023 it was noted, that the prior adjournment granted on March 24, 2023 was to afford the defendant an opportunity to file further motions. Upon the matter being heard on April 14, 2023 the defendant acknowledged motions were due on said date, additional time was granted and the court further directed the People to file any responses by May 5, 2023. It is noted, the defendant filed a motion seeking omnibus relief on the same day and the prosecution filed a response on May 5, 2023. All of this time is excludable based upon the defendant's request to file motions, and the need for the People to have a reasonable period of time to reply.
May 5, 2023 - June 14, 2023 - on May 5, 2023 the court acknowledged receipt that a further motion was filed by the defendant, a reply was submitted by the People and that a hearing was necessary to determine the validity of the certificate of compliance. A tentative date of May 24, 2023 was scheduled for the hearing, and later adjourned until June 14, 2023 upon the defendant's request. Once again, this period is excluable as a hearing was necessary based upon the defendant's second motion, and a determination on the final omnibus motion needing to be held in abeyance.
Therefore, there are 66 days between commencement of this criminal action and People announcing readiness and during this period 59 of those days are excludable for speedy trial purposes. Based upon the findings herein, 7 days lapsed for speedy trial purposes as it relates to pre-readiness time being charged to the People. As set forth above, an additional 7 days of post-readiness time must be charged to the People as a result of a delay in submitting responding papers. With only 14 days being charged to the People, a speedy trial violation has not occurred, and the defendant's motion to dismiss pursuant to CPL §30.30 must be denied.
Furthermore, CPL § 210.45(5)(c) provides that the court may deny a motion to dismiss on speedy trial grounds without a hearing when allegations of fact necessary to support the motion are conclusively refuted by unquestionable documentary proof. The court finds that its own records constitute unquestionable documentary proof that there are only 14 days of time chargeable to the People. As such, a hearing is not required in this matter.
Given the findings herein, the court will conduct the Huntley hearing, as previously scheduled, along with a bench trial. All other relief requested in the defendant's omnibus motion dated April 14, 2023 has been previously determined in the court's memorandum decision dated March 2, 2023.
So Ordered.