Opinion
2017NY022955
02-14-2020
The PEOPLE of the State of New York, Plaintiff, v. Thomas CHIN, Defendant.
For the People: Assistant District Attorney Prium Singh For Defendant: Stuart Gold (Brafman & Associates, P.C.)
For the People: Assistant District Attorney Prium Singh
For Defendant: Stuart Gold (Brafman & Associates, P.C.)
Jay L. Weiner, J.
On June 7, 2018, the defendant was convicted, after a bench trial, of sexual abuse in the third degree and was sentenced to time served. On appeal, he contends, among other things, that the Criminal Court should have granted his motion to dismiss the action on the ground that he was deprived of his right to a speedy trial. By order dated October 4, 2019, the Appellate Term held the defendant's appeal in abeyance and remanded the matter to this Court "for further proceedings on defendant's speedy trial motion" and "disposition thereof" ( People v. Chin , 65 Misc. 3d 130(A), 2019 NY Slip Op. 51558[U], *1 [App. Term 1st Dept. 2019] ). For the reasons stated below, the defendant's motion is denied .
Procedural Background
An extended summary of the procedural history of this matter is appropriate, given the issues raised in the defendant's speedy trial motion.
The defendant was arrested on April 20, 2017, after a police officer observed him engage in certain conduct in relation to Jane Doe on a subway train in Manhattan. He was charged, by information, with certain crimes, the highest degree of which was a class A misdemeanor. The defendant was arraigned on the information on April 21, 2017, and the matter was adjourned for defense motions. Defense motions were timely filed, the People timely responded, and the court decided the motions, as scheduled, on June 6, 2017. As relevant here, suppression hearings were ordered, and the matter was adjourned to July 11, 2017, for hearings and trial.
The complainant's name is fictitious (see Civil Rights Law § 50-B[1] ; People v. McDaniel , 81 N.Y.2d 10, 13 n 1 [1993].
On July 11, 2017, the People announced that they were ready for trial, and the matter was "ready and passed" to July 12, 2017, for hearings only. The hearings were conducted, the defendant's motion to suppress was denied, and the matter was adjourned to September 5, 2017. When the matter was called on the morning of September 5, 2017, the People stated that they would be ready at 2:15 p.m., but also noted that Ms. Doe was out of state and would be available on September 7, 2017. A new accusatory instrument was served and filed, the highest charges of which were class B misdemeanors, and the matter was adjourned for further motions, to October 19, 2017. The defendant timely filed his additional motions in September, the People timely responded in early October, and the court issued a written decision on October 19, 2017.
On October 23, 2017, the case was on the calendar in Part BTP2. When the court asked when the People would be ready for trial, the People stated that they had "a few bad dates" but could be ready that Thursday (October 26, 2017). Defense counsel stated that he was not available, for several reasons, including scheduled trials in other jurisdictions, and he told the court that the earliest he could do the trial in this matter would "probably" be early December. Defense counsel added that the defendant himself was scheduled for a business trip during the first week of December. The court observed that the trial in this matter was not going to be "very long," and suggested adjourning the case to November 27, 2017. The People asked for an additional "one or two days" because the complainant was going to be on vacation from November 11 through November 26. The People added that the complainant "is also out-of-state," so they would need to schedule a flight. The court adjourned the case to November 28, 2017, for hearing and trial.
On November 28, 2017, the People stated that they were not ready for trial because the complainant was "unavailable due to work obligations." Following a bench conference, the court adjourned the case to December 14, 2017, for hearing and trial. The transcript of the proceedings on November 28, 2017, does not reflect whether the People requested an adjournment shorter than the 16 days between November 28 and December 14, but the court's action sheet contains a notation in the court's handwriting that the People requested "12/7."
On December 14, 2017, the People stated that the complaining witness was not available, and they requested that the matter be adjourned to January 8, 2018. The People added that they had "scheduling issues," and a bench conference was held. After the bench conference, the court said that, although the People were requesting that the matter be adjourned to January 8, 2018, the parties had agreed, after discussion, that February 2, 2018, "should be a good date."
On February 2, 2018, the People stated that they were not ready because the assigned assistant district attorney was in mandatory training for the next two weeks. The People requested that the matter be adjourned to February 14, 2018. The court noted that the case was getting "old," and suggested that it be adjourned to February 22, 2018. Defense counsel said that he was scheduled for a trial in another state, and the court suggested the week of February 13 or February 14. Defense counsel acknowledged that the People had requested February 14, but said that he was scheduled to be in another court that day and had another proceeding scheduled for February 15, 2018. Defense counsel added that both he and the defendant himself would be away the week of February 19, 2018. The court suggested adjourning the case to February 26, 2018, and both the People and defense counsel agreed to that date.
On February 26, 2018, the People stated that they were not ready for trial, because a witness was out of town. They requested that the matter be adjourned to March 13, 2018. Defense counsel stated that March 13, 2018 was not a good date, and he added that he and the People had had a conversation and agreed that April 18 or 19, 2018, would be a "mutually agreeable" date. After defense counsel noted that the hearings had already been conducted, the court adjourned the matter to April 18, 2018, for trial.
On April 18, 2018, the People stated that they would be ready for trial that day, at noon. Defense counsel stated that he was not ready, because he had been given a firm trial date that week on a felony case in Kings County. He pointed out that the People had not been ready for trial on four consecutive trial dates. He also asserted that this was the first adjournment requested by the defense. When the matter was called again, that afternoon, the People said they were ready for trial, and defense counsel repeated that he was not ready. The People and defense counsel agreed that the case would be adjourned to June 6, 2018, for trial. Defense counsel informed the court and the People that he intended to file a speedy trial motion, as quickly as possible so it could be decided before the trial date. The matter was then adjourned for trial to June 6, 2018.
On June 4, 2018, defense counsel filed a speedy trial motion, returnable on June 6, 2018. In his motion, the defendant argued that the People were chargeable with "no less than" 105 days of delay, 15 days in excess of the 90-day limit applicable to this case. The defendant reasoned that, because the People were not ready for trial on various dates after they had initially announced that they were ready for trial, their prior statements of readiness were "illusory." Thus, the defendant asserted, the People were chargeable not only for periods of delay that they had expressly requested between November 28, 2017, and April 18, 2018, but also the periods during which the case had been adjourned beyond the dates the People had requested.
On June 6, 2018, the People said that they had not received the defendant's speedy trial motion, but, after hearing oral argument, the court denied the motion, and, later that day, upon reargument, adhered to its original determination. The People had not responded to the defendant's motion in writing.
The case was adjourned for trial to the next day, June 7, 2018. At a bench trial that day, the defendant was acquitted of two counts of attempted forcible touching and one count of sexual abuse in the third degree, but was convicted of one count of sexual abuse in the third degree. The court imposed a sentence of "time served."
On the defendant's appeal, the defendant contended, as relevant here, that, because the People failed to respond to his speedy trial motion in writing or state their intention to answer the motion in writing, they conceded the truth of the facts supporting the motion. Accordingly, the defendant contended, the motion should have been granted on default. The defendant alternatively contended that the motion should not have been denied summarily, and that the court should have held a hearing to determine whether the People's requests for particular adjournments were "illusory." The People, in turn, contended that the defendant's speedy trial claim was "waived" because the speedy trial motion, having been filed only two days before the date scheduled for trial, had not been made on "reasonable notice" to the People. The People contended, alternatively, that the defendant's motion did not state a legal basis for relief and thus should have been denied summarily. Finally, the People contended that the motion was properly denied on the merits because they had established that they were not responsible for delay in excess of the 90-day statutory limit.
In its decision and order, dated October 4, 2019, the Appellate Term expressly rejected the People's contention that the defendant's speedy trial claim was waived because the defendant's motion was not made upon reasonable notice: "defendant did not waive his right to a dismissal on speedy trial grounds. His CPL 30.30 motion, although brought on the eve of trial, was timely" ( People v. Chin , 2019 NY Slip Op. 51558[U], *1). The Appellate Term also implicitly rejected the People's contention that the defendant's motion to dismiss should have been summarily denied because it did not state a legal basis for relief on speedy trial grounds. Likewise, the Appellate Term implicitly rejected the defendant's contention that his motion should have been granted on default because the People failed to respond, or ask for an opportunity to respond, in writing. The Appellate Term noted that the record was insufficient for appellate review because the People "did not have an opportunity to respond to the motion prior to the court's decision," and it remanded the matter for "further proceedings on the motion and disposition thereof" (id. ; see People v. Torres , 63 Misc. 3d 154[A], 2019 NY Slip Op. 50811[U], *1 [App. Term 2d, 11th, and 13th Jud. Dists 2019] ).
The matter was returned to the Criminal Court on October 21, 2019. On that date, it was administratively adjourned to Part A on November 25, 2019. On November 25, 2019, I directed the People to respond to the defendant's motion, off calendar, by December 16, 2019, directed the defendant to reply, also off calendar, by December 20, 2019, and adjourned the matter to January 9, 2020, for decision. The People did not file a response, and, on January 9, 2020, they requested two additional weeks to respond. Defense counsel objected to any extension and argued that the motion should be granted on default. The Part A judge on that date denied the People additional time to respond, and stated that any renewed request for an extension of time should be made to me. The Part A judge adjourned the matter to February 14, 2020, for me to issue a decision. Through my law clerk, I advanced the matter to January 17, 2020. Over the defendant's objection, which he stated in a letter dated January 16, 2020, and orally on January 17, 2020, the Part A judge effectuated my directive to grant the People an extension, until January 31, 2020, to respond to the defendant's speedy trial motion. The defendant was directed to file any reply by February 7, 2020, with a decision to be issued February 14, 2020. The People and the defendant have complied with that schedule.
The Law
Criminal Procedure Law § 30.30 defines a defendant's right to a speedy trial by reference to periods of prosecutorial delay (see People v. Brown , 28 N.Y.3d 392, 403 [2016] ). Although CPL 30.30(1) states, in deceptively simple terms, that a motion to dismiss must be granted "where the people are not ready for trial within" the specified time period, CPL 30.30(4) makes clear that the statutory time period relates only to delay that is attributable to the People and not otherwise excluded from the calculation of chargeable time under the provisions of the statute. Accordingly, a motion to dismiss pursuant to CPL 30.30(1) is determined by calculating the time chargeable to the People; if the total of unexcused delay exceeds the relevant statutory time period, the court "must" grant the motion to dismiss ( CPL 30.30[1] ; see People v. Cortes , 80 N.Y.2d 201, 208 [1992] ).
Absent statutory exclusions, the People are chargeable with the time elapsed from the commencement of the action until they validly announce that they are ready for trial. The People may validly announce that they are ready for trial when they have removed all legal impediments to the commencement of their case (see People v. England , 84 N.Y.2d 1, 4 [1994] ). In order to effectively announce that they are ready for trial, the People must communicate their actual readiness in open court or file a certificate of actual readiness and serve a copy on the defendant's attorney (see People v. Kendzia , 64 N.Y.2d 331, 337 [1985] ). A statement of readiness is not valid unless the People are "truly ready" to proceed ( Brown , 28 N.Y.3d at 403, quoting People v. Carter , 91 N.Y.2d 795, 798 [1998] ).
Recent amendments to CPL 30.30 and to other provisions of the Criminal Procedure Law add the requirement that the People have complied with their discovery obligations under CPL Article 245, among other obligations (see generally L 2019, ch 59, pt KKK, § 1).
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Once the People have announced their readiness to proceed to trial, they have satisfied their obligation under the statute and are chargeable with subsequent delay only "when the delay is attributable to their inaction and directly implicates their ability to proceed to trial" ( Brown , 28 N.Y.3d at 404, quoting Carter , 91 N.Y.2d at 799 ; Cortes , 80 N.Y.2d at 208 [People are chargeable only with subsequent delay that is "actually attributable" to them] ). One consequence of a valid statement of readiness is that, following it, the People will be charged only with that part of an adjournment that they have actually requested (see Brown , 28 N.Y.3d at 404 ; People v. McCarthy , 146 A.D.3d 983, 983 [2d Dept. 2017] ). Still, even after the People announce that they are ready for trial, they bear the burden of making a record adequate for the court to determine whether time should be excluded from the speedy trial calculation (id. ; see People v. Stirrup , 91 N.Y.2d 434, 440 [1998] ).
On a motion to dismiss an accusatory instrument based on a violation of Criminal Procedure Law § 30.30(1), the defendant bears the initial burden of demonstrating the existence of delay in excess of the statutory time period ( Brown , 28 N.Y.3d at 403 ; People v. Santos , 68 N.Y.2d 859, 861 [1986] ). If the defendant satisfies that initial burden, the People then must establish that certain periods should be excluded from the total period of delay so that the chargeable periods do not exceed the statutory time period ( Brown , 28 N.Y.3d at 403 ). Ultimately, it is the defendant who bears the burden of showing that postreadiness adjournments should be charged to the People (see Brown , 28 N.Y.3d at 404 ; Cortes , 80 N.Y.2d at 215 ; People v. Patel , 160 A.D.3d 530, 530-531 [1st Dept. 2018] ).
In recent years, the Court of Appeals has confronted situations where the People, after requesting a particular adjournment because they are not ready, have filed and served a statement of readiness off calendar, but then have not been ready at the next adjourn date (see Brown , 28 N.Y.3d 392 ; People v. Sibblies , 22 N.Y.3d 1174 [2014] ). Normally, an off-calendar statement of readiness would serve to stop the running of chargeable time that the People otherwise would have incurred by asking for an adjournment. And, in Brown , the Court of Appeals held that an off-calendar statement of readiness is "presumed truthful and accurate and that a defendant who challenges such a statement must demonstrate that it is illusory" ( Brown , 28 N.Y.3d at 405 ). Nevertheless, the Court has held that, if, after requesting an adjournment, the People announce off calendar that they are ready, but then are not ready at the next adjourn date, they must explain, ultimately, what caused them not to be ready on the adjourn date ( Brown , 28 N.Y.3d at 406 ).
Discussion
In this case, the defendant was charged, initially, with a class A misdemeanor, and it is undisputed that the People were required to be ready within 90 days (see CPL 30.30[1][b] ). In the defendant's timely, detailed motion to dismiss pursuant to CPL 30.30, the defendant met his initial burden by alleging that, of the 362 days beginning with April 22, 2017 (the day after the action commenced) to April 18, 2018, 105 days of delay were chargeable to the People. Accordingly, the People were required to demonstrate that the delay chargeable to them was within the 90-day statutory limit.
As a preliminary matter, this Court, in its discretion, accepts the People's late response to the defendant's motion and has fully considered it, as well as the defendant's reply, on the merits. As the Appellate Division, First Department, recently restated, it is axiomatic that "justice is best served when cases are decided on the merits" ( People v. Lora , 177 A.D.3d 518, 520 [1st Dept. 2019] ). Moreover, although the People, without valid excuse, failed to comply with the initial motion schedule I set in November 2019, that lapse was not part of a pattern of delay (id. ; cf. People v. Walsh , 176 Misc. 2d 144, 148 [Crim Ct Kings County 1997] ). The case has been vigorously contested from the outset, with both the People and the defendant filing various motions at a high professional level, both in timeliness and content. Finally, the People's delay in responding to the defendant's speedy trial motion after remand on appeal could not have delayed the defendant's trial, which took place more than a year earlier.
In their response to the defendant's speedy trial motion, the People established that they were responsible for delay not exceeding 90 days. The People acknowledged that they were chargeable with the delay caused when they were not ready for trial on November 28, 2017, December 14, 2017, February 2, 2018, and February 26, 2018. Under the settled rule that, in the postreadiness context, the People are responsible only for the period of an adjournment actually requested by them, the People demonstrated that they were chargeable with the nine days they requested on November 28, 2017, the 25 days they requested on December 14, 2017, the 12 days they requested on February 2, 2018, and the 13 days they requested on February 28, 2018. The record before this Court establishes the reasons for the adjournments on those dates. During those periods, the People did not want to proceed to trial without the complainant, and her temporary unavailability was the reason for the People's unreadiness on three of the four dates. The assigned prosecutor's unavailability on February 2, 2018, was the reason for the remaining request. None of those requests returned the People to prereadiness status. Thus, the People demonstrated that they were chargeable with a total of 59 days, well within the 90-day period applicable to this case.
In his reply to the People's response, the defendant contends that the People's requests for adjournments on days they were not ready were not valid because there was no expectation that they would be ready on the date they requested. Many of the cases on which the defendant relies relate to whether delays should be excludable because of "exceptional circumstances" ( CPL 30.30[4][g] ). Those cases are inapposite, because the People do not contend that the periods of delay occasioned by their unreadiness because of the absence of the complainant or the training of the prosecutor were excludable. The People accept that those delays are chargeable to them, but they contend that only those delays reflected in their specific requests for adjournments are chargeable to them. The court agrees.
The defendant also contends that the People are chargeable with 46 days of delay after the Appellate Term remanded the case for further proceedings on the defendant's speedy trial motion. Specifically, the defendant contends that the 46 days between the date the People's response was due (December 16, 2019) and the date the People ultimately filed the response (January 31, 2020), should be added to the time already chargeable. This contention lacks merit. Any dereliction by the People in responding to the defendant's motion in December 2019 and January 2020 did not delay the defendant's trial, which had already taken place, in June 2018 (cf. CPL 30.30[7] ). The defendant was entitled to a speedy trial, which he received. The delay, post-trial, of the resolution of his speedy trial motion, is irrelevant to the calculation of pre-trial delay.
Finally, the defendant contends that he is entitled to a hearing to determine whether time should be charged to the People. The defendant has failed to demonstrate that he is entitled to a hearing. At bottom, the defendant has failed to allege sufficient facts that would support an inference that the People's statements of readiness in July and September 2017 were illusory, or that the People's failure to be ready for trial following adjournments in excess of the time they requested returned the People to the status of prereadiness. The People never sought to stop the speedy trial clock by serving a certificate of readiness off-calendar. Instead, on each date that they were not ready, they requested a date, and they are chargeable with the period of delay to the requested date. The periods of delay beyond that date were attributable to defense counsel's unavailability due to his busy trial practice, and the defendant's own travel schedule. There is no basis in this case to depart from the settled rule that the People are chargeable only up to the date they request (see McCarthy , 146 A.D.3d at 984 ; People v. Wade , 64 Misc. 3d 144[A], 2019 NY Slip Op. 51293[U], *2 [App. Term 9th and 10th Jud. Dists 2019] ). In short, the defendant's allegations amount to speculation, and they do not entitle him to a hearing.
In sum, because the People are chargeable with only 59 days of delay, the defendant is not entitled to dismissal pursuant to CPL 30.30(1).
Criminal Procedure Law § 30.20
The defendant also argues that he is entitled to dismissal pursuant to CPL 30.20. Upon review of the particular facts and circumstances of this case, especially considering the extent and reason for the various delays, the lack of prejudice to the defendant, the nature of the charges, and the lack of an extended period of pretrial incarceration, I hold that the defendant has not been denied his constitutional right to a speedy trial (see People v. Taranovich , 37 N.Y.2d 442 [1975] ).
Accordingly, the defendant's motion to dismiss the accusatory instrument on the grounds that he has been denied his right to a speedy trial under CPL 30.20 or 30.30 is denied.
This constitutes the Decision and Order of the court.