Opinion
Docket No. CR-023097-22QN
03-20-2023
The People of the State of New York v. Chen, Defendant.
For the People: Melinda Katz, District Attorney (by Jennifer Hout) For Mr. Chen: Addabo & Greenberg (by Todd Greenberg)
Unpublished Opinion
For the People: Melinda Katz, District Attorney (by Jennifer Hout)
For Mr. Chen: Addabo & Greenberg (by Todd Greenberg)
Wanda L. Licitra, J.
In this case, the People had 90 days to validly state ready for trial. (See C.P.L. § 30.30[1][b]). The People filed the case on September 16, 2022. Therefore, the People had until December 15, 2022, to validly state ready. The defense has filed a C.P.L. § 30.30 motion, arguing that the People never validly stated ready within the time the law allows.
In People v. Kendzia, the Court of Appeals explained that a valid statement of readiness requires "either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record." (64 N.Y.2d 331, 337 [1985]).
Since Kendzia, there has been disagreement over whether the filing date of a written notice of readiness is effective if the notice is sent late to defense counsel. The debate stems from a footnote in Kendzia, in which the Court of Appeals acknowledged that, "[i]f the prosecutor's statement of readiness in open court were made without defense counsel present, the prosecutor would have to promptly notify him of the statement of readiness." (Id. at 337 n.*). Some courts overread this footnote. They permit prosecutors to file written notices of readiness without simultaneous service to the defense, so long as defense counsel is promptly notified afterwards. (E.g., People v. Anderson, 252 A.D.2d 399 [1st Dep't 1998]). Others cabin that footnote to its terms, only applying it to statements of readiness made" in open court." (E.g., People v. Bloodworth, 173 A.D.3d 1838, 1840 [4th Dep't 2019]; see also People v. Collins, 186 Misc.2d 818, 821 [Crim. Ct., Richmond County 2000] [although endorsing a promptness analysis, acknowledging that Kendzia mandates that the People send the notice "nearly simultaneously to the defense and the court"]).
Still, all courts seem to reject the filing date for a statement of readiness if the People delay notifying the defense by over a few weeks. (See Bloodworth, 173 A.D.3d at 1838 [in the alternative, 17 days not prompt]; People v. Dweck, 64 Misc.3d 1204 [A], at *2 [Crim. Ct., Kings County 2019] [20 days not prompt]; People v. Waters, 196 Misc.2d 421 [City Ct., City of Elmira 2003] [29 days not prompt]; People v. Chittumuri, 189 Misc.2d 743 [Crim. Ct., Queens County 2001] [28 days not prompt]; People v. Todd, 184 Misc.2d 381 [Crim. Ct., Kings County 2000] [27 days not prompt]).
In addition to Kendzia 's service requirement, the People must now also "actually produce[]" automatic discovery to the defense before they may validly state ready. (People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787-88 [2d Dep't 2021]). In Ferro, the People thought they had produced all the discovery listed on their certificate; but they were wrong, they had not. (See People v. Francis, 75 Misc.3d 1224 [A], at *2 [Crim. Ct., Bronx County 2022] [explaining Ferro ]; see also Pr. Br. at 7-23, People ex rel. Ferro v. Brann, A.D. Docket No. 2021-05850 [Aug. 18, 2021]). The Appellate Division, Second Department, concluded, over the People's protestations of "good faith," that the certificate of compliance "could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant." (Ferro, 197 A.D.3d at 788; see also Francis, 75 Misc.3d 1224[A], at *2).
In this case, on November 3, 2022, the People filed certificates of discovery compliance and readiness with the court. However, instead of emailing these documents and producing discovery to the defense attorney's correct email, the People sent it all to an invalid address. They did so even though they had corresponded with the defense attorney at his correct email address less than a week before. And they did so even though defense counsel's notice of appearance lists his correct email in bold, capitalized letters in 14-point font:
PLEASE CONTACT TODD GREENBERG, ESQ. AT
TODD@QUEENSLAW.COM
Immediately upon sending the emails to the invalid address, the People received a "bounce back." It informed them that the address to which they had just sent the documents did not work. The next day, the People responded to that bounce back-thereby again emailing the invalid address-stating: "I received an email from our system stating that discovery was not able to be received on your end... at this email. Wondering if there is a better email contact I should be reaching you at?" For the next 41 days before the C.P.L. § 30.30 deadline expired, the People made no other efforts to send the documents or discovery to the defense.
On January 4, 2023, defense counsel spoke with the assigned prosecutor to confirm that the case would be dismissed. He had no knowledge that the People had ever filed or attempted to serve certificates of compliance and readiness. Only then did the assigned prosecutor explain to the defense attorney what happened, and only then did the prosecutor actually produce these documents to the defense. This was 62 days after the People had filed their statement of readiness. There were no court dates in between.
Under these circumstances, the People's statement of readiness and certificate of discovery compliance were not effective to toll their C.P.L. § 30.30 readiness clock. The People did not simultaneously send their statement of readiness to defense counsel, nor can their 62-day delay in notifying defense counsel be considered "prompt." Moreover, the People did not actually produce discovery to the defense at the time they filed their certificate, nor did they do so within the entire speedy-trial period.
The court rejects the People's insistence on "good faith." Kendzia announced no good-faith exception to its service rule. (See generally 64 N.Y.2d at 331-38). Just because the People must make a statement of readiness in good faith does not imply that they need only attempt service in good faith. Unless the People in fact send the statement to a defense attorney's last-known address, "the fact that the People acted in good faith is irrelevant." (Chittumuri, 189 Misc.2d at 746-47; see also People v. Telemaque, 43 Misc.3d 138 [A] [App. Term, 2d Dep't 2014]). "What is relevant is that the People have an obligation to inform" the defense attorney of their readiness. (Chittumuri, 189 Misc.2d at 746-47). A statement of readiness made ex parte has "no effect and fails to satisfy the requirements of Kendzia." (Id. at 748). However, even if there were a good-faith exception to service, the court would not find it here. The People were clearly on notice of the correct email address from defense counsel's notice of appearance and their own earlier email correspondence with his correct address. And the People were immediately notified that the email address to which they attempted to serve their certificates and discovery did not work. Nonetheless, they took no action within the entire speedy-trial period other than inexplicably emailing that same invalid address again.
Finally, the People's arguments about "prejudice" and C.P.L. § 245.80 sanctions are wholly irrelevant to this C.P.L. § 30.30 motion. (See People v. Hamilton, 46 N.Y.2d 932, 933-34 [1979] ["Finally, it bears emphasis that the right to a speedy trial guaranteed by CPL 30.30, which relates to prosecutorial readiness, is not dependent in any way on whether the defendant... can demonstrate prejudice resulting from the delay."]; People v. O'Neal, 99 A.D.2d 844, 845 [2d Dep't 1984] ["Moreover, the right to a speedy trial as guaranteed by CPL 30.30 relates to prosecutorial readiness and is not in any way dependent upon prejudice to the defendant."]; People v. Adrovic, 69 Misc.3d 563, 574 [Crim. Ct., Kings County 2020] ["[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant."]; People v. Darren, 75 Misc.3d 1208 [A], at *5 [Crim. Ct., NY County 2022]; People v. Diaz, 75 Misc.3d 314, 320 & n.3 [Crim. Ct., Bronx County 2022]; People v. Pierna, 74 Misc.3d 1072, 1089-90 [Crim. Ct., Bronx County 2022]; People v. Quinlan, 71 Misc.3d 266, 272 [Crim. Ct., Bronx County 2021]; see also Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, N.Y.L.J. [June 6, 2022] ["One must distinguish this discretionary type of dismissal [in C.P.L. § 245.80], however, from a dismissal under C.P.L. § 30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance."]).
As a result, the People never validly stated ready for trial within their allotted time. (See C.P.L. § 30.30[1][b]). The People identify no periods of prereadiness time that should be excluded under C.P.L. § 30.30[4]. Accordingly, the defense's C.P.L. § 30.30 motion must be granted. The case is dismissed.
The foregoing constitutes the order and decision of the court.