Opinion
No. 2010KN028454.
2012-02-24
The PEOPLE of the State of New York, Plaintiff, v. Marlene DORLICE, Defendant.
Charles J. Hynes, District Attorney, Kings County, by Joan Erskine, Esq., Assistant District Attorney. for the People. Richard J. Korn, Esq., for the Defendant.
Charles J. Hynes, District Attorney, Kings County, by Joan Erskine, Esq., Assistant District Attorney. for the People. Richard J. Korn, Esq., for the Defendant.
JOHN H. WILSON, J.
Defendant was initially charged with two counts of Endangering the Welfare of a Child (PL Sec. 260.10(2)), a Class A misdemeanor, in a Criminal Court Complaint dated April 9, 2010. By a superceding information dated June 3, 2010, two counts of Attempted Endangering the Welfare of a Child (PL Sec. 110/260.10(2)), a Class B misdemeanor, were added.
The two counts of Endangering the Welfare of a Child were dismissed on motion of the People on September 13, 2011, with the consent of the Defendant. After pre-trial hearings were held on October 6, 2011, the matter was then tried before this Court without a jury on November 1, 2011, and November 14, 2011. On November 21, 2011, the Defendant was found guilty of both counts of Attempted Endangering the Welfare of a Child, and on that same day, was sentenced to 90 days jail, concurrent sentences in each count. Judgement was entered for the mandatory surcharges.
By motion dated September 22, 2011, supplemented on September 23, 2011, Defendant seeks dismissal of this matter pursuant to CPL Sec. 30.30(1)(b), asserting that the People have failed to comply with the time limitations imposed upon the prosecution of misdemeanors.
On September 23, 2011, Defendant's motion was denied. In its oral decision, the Court indicated that a written decision would be provided to the parties. This decision follows.
Defendant was given the opportunity to file additional post-trial motions, however, by letter dated January 20, 2012, Defendant declined to make any additional motions, and asked only for “the court's decision regarding the second amended speedy trial motion.”
The Court has reviewed the Court file, the minutes of the pre-trial hearing and trial, Defendant's motion, and the People's Response dated January 27, 2012.
For the reasons that follow, Defendant's motion is denied. The Court finds that the People are charged with 68 days in this matter.
STATEMENT OF FACTS
According to the trial testimony of social worker Michelle McBeth, the witness appeared at the door of Defendant's residence, Apartment 2C in 334 Chauncey Street, Brooklyn, New York for a scheduled visit. See, trial transcript of November 14, 2011, p. 40. Defendant, the mother of 2 children, ages 9 and 2, did not answer the door. After approximately 15 minutes, Ms. McCall called her supervisor, then 911. See, trial transcript of November 14, 2011, p. 41–42.
In response to the 911 call, Police Officer Jason Surillo arrived outside 334 Chauncey Street in time to observe “a black female jumping from her stoop onto a fire escape ladder, climbing that ladder, and, then, entering a second floor window.” See, trial transcript of November 14, 2011, p. 7. The Officer proceeded into the building, met Ms. McCall outside Apartment 2C, and knocked on the door. Defendant answered the door. See, trial transcript of November 14, 2011, p. 8–9. He recognized Defendant as the woman he observed climbing in through the second floor window. See, trial transcript of November 14, 2011, p. 8.
Defendant presented the testimony of her older daughter in her own defense. However, the infant witness admitted that at the time Ms. McCall was outside knocking on the door, Defendant was not present in the apartment. See, trial transcript of November 1, 2011, p. 26.
LEGAL ANALYSIS
(A) CPL Sec. 30.30.
At the inception of this matter, the top count of the Criminal Court Complaint herein was a Class A misdemeanor. Thus, there is no dispute that 90 days is the applicable time limit for this matter. See, CPL Sec. 30.30(1)(b); People v. Cooper, 98 N.Y.2d 541, 543, 750 N.Y.S.2d 258 (2002) ( “CPL 30.30 time periods are generally calculated based on the most serious offense charged in the accusatory instrument and are measured from the date of commencement of the criminal action.”).
The Defendant was arrested on April 9, 2010, and arraigned the next day. Defendant was released in her own recognizance, and the matter was then adjourned to April 27, 2010 for conversion. Excluding the day of arraignment from our calculations (See, People v. Stiles, 70 N.Y.2d 765, 520 N.Y.S.2d 745 (1987); People v. Eckert, 117 Misc.2d 504, 458 N.Y.S.2d 494 (City Ct., Syracuse, 1983)), this entire adjournment, or 17 days, is charged to the People.
On April 27, 2010, the People stated not ready for conversion. The matter was adjourned to June 22, 2010 for conversion, however, prior to that date, on June 4, 2010, the People filed and served a Statement of Readiness, with a superceding complaint and supporting deposition on the Court and defense counsel. Thus, the People are charged with the time between April 27, 2010 and June 4, 2010, or 37 days. See, People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888 (1985) (“there must be a communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court ... 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 ...” (Emphasis added). See, also People v. Perre, 172 Misc.2d 976, 979, 660 N.Y.S.2d 632 (S Ct., N.Y. Cty, 1997) (“Statements (of readiness) were effective when made and filed with the court”).
On June 22, 2010, the People served their Discovery by Stipulation. The matter was then adjourned to August 5, 2010 for hearings and trial. Since the People are afforded a reasonable opportunity to be ready for hearings and trial, this time is excluded. See People v. Fleming, 13 AD3d 102, 785 N.Y.S.2d 333 (1st Dept., 2004), and cases cited therein.
On August 5, 2010, the People stated not ready for hearings and trial, and asked for an adjournment of one week. Although the matter was then adjourned to October 19, 2010 for hearings and trial, it is well settled that post readiness, the People are to be charged with only the amount of time they request. See, People ex rel Sykes v. Mitchell, 184 A.D.2d 466, 468, 586 N.Y.S.2d 937 (1st Dept, 1992); People v. Urraea, 214 A.D.2d 378, 625 N.Y.S.2d 937 (1st Dept, 1995). Thus, the People are charged with 7 days between August 5, 2010 and October 19, 2010.
On October 19, 2010, the People stated not ready for hearings and trial, however, Defendant consented to an adjournment until January 4, 2011. This time is excluded.
On January 4, 2011, the People stated not ready for hearings and trial, however, Defendant failed to appear. A bench warrant was stayed until March 3, 2011, for Defendant to appear. On March 3, 2011, Defendant appeared, but late in the afternoon. The case was then adjourned to April 28, 2011for hearings and trial.
Thus, the time between January 4, 2011 and March 3, 2011, as well as the time between March 3, 2011 and April 28, 2011 is excluded. See, CPL Sec. 30.30(4)(c); People v. Notholt, 242 A.D.2d 251, 254, 662 N.Y.S.2d 297 (1st Dept, 1997).
On April 28, 2011, the People stated not ready, and requested one week. The matter was adjourned to June 23, 2011. Again, the People's request being post-readiness, the People are charged with 7 days for the time between April 28, 2011 and June 23, 2011.
On June 23, 2011, the People stated ready for hearing and trial, however, Defendant once more appeared late in the afternoon. Based upon Defendant's history of bench warrants and lateness, bail was set, Defendant was taken into custody, and the matter was adjourned to July 12, 2011 for hearing and trial. Based upon the People's statement or readiness, this adjournment is excluded.
The People stated ready for each of the next adjournments of July 12, 2011, September 13, 2011, September 21, 2011 and September 23, 2011. It should be noted that on September 22, 2011, Defendant filed the instant motion to dismiss, which Defendant then supplemented on September 23, 2011.
Thus, the People are charged with 17 days for the time between April 10, 2010 and April 27, 2010, 37 days between April 27, 2010 and June 4, 2010 (the date the People filed and served their Statement of Readiness), and two 7 day periods between August 5, 2010 and October 19, 2010, and April 28, 2011 and June 23, 2011 (the People's post-readiness requests during those adjournments). These charged time periods added together equal a total of 68 days in this matter.
(B) CPL Sec. 240.20.
By letter dated April 28, 2011, Defendant was served with notice of a prior inconsistent statement made by one of Defendant's two children, to the effect that “the defendant's boyfriend was in the apartment with the children on the morning of defendant's arrest and left the apartment via the window when defendant entered the apartment via the window.” See, People's letter dated April 29, 2011.
Defendant asserts that “the People had an statutory obligation to notify the defense of this ... material timely their statement of readiness for trial is illusory and was not satisfied until their obligations under 240.20(1)(h) was met.” See Defendant's amended motion dated September 23, 2011, p. 3. However, as the People correctly note, “a delay in providing (discovery) is not one that affects the People's readiness for trial and does not vitiate earlier statements of readiness.” See, People's response dated January 27, 2012, p. 1, citing, People v. Caussade, 162 A.D.2d 4, 8, 560 N.Y.S.2d 648 (2d Dept, 1990), app den76 N.Y.2d 984, 563 N.Y.S.2d 772 (1990).
In Caussade, the “court specifically held that the failure of a District Attorney to comply with the mandates of CPL article 240 ... is in no way inconsistent with the prosecutor's continued readiness for trial.” See, People v. Saunders, 8 Misc.3d 214, 217, 797 N.Y.S.2d 268 (Crim Ct, Kings Cty 2005), citing Caussade, 162 A.D.2d at 8. This is based upon the difference between “the failure to comply with discovery, which could be addressed by a motion to compel under CPL Sec. 240.20, and a failure to perform an act which results in a delay of the prosecution, such as the failure to produce the Defendant for trial.” 8 Misc.3d at 217, citing 162 A.D.2d at 10.
Here, the material was subject to production under Brady v. Maryland, 373 U.S. 83, 83 S.Ct 1194 (1963). However, as the People correctly point out, “so long as exculpatory material is provided in time for defendant to have the opportunity to use it effectively, there is no violation of ... Defendant's due process rights.” See, People's response dated January 27, 2012, p. 1, citing People v. Osborne, 91 N.Y.2d 827, 828, 666 N.Y.S.2d 556 (1997).
The information regarding the child witness' inconsistent statement was provided to the Defendant in April of 2011, seven months before trial began in this matter. Defendant had a full opportunity to question the witness regarding her statement when the witness testified at trial. See, trial transcript of November 1, 2011, p. 33–35. Thus, there is no prejudice to Defendant by the delay in producing the statement, and no impact on the People's prior Statement of Readiness.
(C) Latent Defect in People's superceding information.
After the People rested their case, Defendant sought to orally amend her motion to dismiss pursuant to CPL Sec. 30.30 on the basis that the complaint was never properly converted. See, trial transcript dated November 21, 2011, p. 7–8. This amendment was based upon the testimony of the child witness, who indicated that she had not seen the Criminal Court Complaint prior to testifying at the trial, and did not remember signing the corroborating affidavit. See, trial transcript dated November 1, 2011, p. 30–31.
Though Defendant did not further supplement her written motion to dismiss pursuant to CPL Sec. 30.30, the People have addressed this issue in their response dated January 27, 2011.
There is no dispute that the infant complainant indicated at trial that “this is my first time” viewing the Criminal Court Complaint, and that she did not remember seeing the complaint, or signing the corroborating affidavit. See, trial transcript dated November 1, 2011, p. 30–31. She also did not recall reading the complaint before signing the corroborating affidavit. She did verify that the signature on the corroborating affidavit was her own .See, trial transcript dated November 1, 2011, p. 31.
Based upon this testimony, Defendant argued that the failure of the infant complainant to properly verify the Criminal Court Complainant during her testimony at trial renders the complaint facially insufficient, and deprives the court of jurisdiction in this matter, since “a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution.” See, People v. Case, 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841 (1977).
Though Defendant has argued that the defect in the People's Criminal Court Complaint was facial, it is, in fact, latent, and not fatal to the People's case.
In People v. Camacho, 185 Misc.2d 31, 711 N.Y.S.2d 283 (Crim Ct, Kings Cty, 2000), the court discussed the difference between a latent and a facial defect. Citing Matter of Edward B., 80 N.Y.2d 458, 591 N.Y.S.2d 962 (1992), the Court noted that where “the case had proceeded beyond the pretrial stages and had entered the fact-finding stage, the need for (a facially sufficient) accusatory instrument ... was no longer compelling ... since the accused has already been brought before the court and the witnesses are available to describe the case against the accused, in person and under oath.” See, 185 Misc.2d at 34.
Thus, a latent defect, such as the failure to provide a certificate of translation, or as in this case, the failure of the complainant to verify the complaint, is “dissipated” if such a defect is not noted until the time of trial. 185 Misc.2d at 34 citing Edward B., 80 N.Y.2d at 465.
Recently, in People v. Antonovsky, 31 Misc.3d 1236(A) (Crim Ct, Kings Cty, 2011) the complainant there testified at trial that he had failed to read the Criminal Court Complaint before signing a corroborating affidavit. The Court held that, “while the complainant's admission means that the Complaint technically ... contained hearsay, his testimony during the People's direct examination effectively corroborated the contents of the Complaint.” 31 Misc.3d at 1236(A).
The situation here is almost identical to that described in Antonovsky. Here, the defect in the People's Criminal Court Complaint was latent, not facial. If the infant complainant did not read the complaint before signing the corroborating affidavit, this facial defect was cured by the complainant's testimony at trial. The infant witness' trial testimony verified the allegations contained within the superceding information. See, trial transcript of November 1, 2011, p. 26.
Thus, Defendant's motion to dismiss pursuant to CPL Sec. 30.30 is denied in all respects.
All other arguments advanced by Defendant have been reviewed and rejected by this Court as being without merit.
This shall constitute the opinion, decision, and order of the Court.