Opinion
CR-046171-18KN
06-17-2019
The PEOPLE of the State of New York v. Morris DWECK, Defendant.
On May 7, 2019, Defendant moved to dismiss the accusatory instrument pursuant to CPL § 30.30(1). Opposition was filed on May 31, 2019.
Defendant is charged with Operation Outside of Lane ( VTL § 1128(A] ); Drivers to Exercise Due Care ( VTL § 1146[A] ); Excessive Speed ( VTL § 1180[A] ); Leaving the Scene of an Incident Without Reporting ( VTL § 600[2][A] ); and Reckless Driving ( VTL § 1212 ). Defendant was arraigned on October 18, 2018. The accusatory instrument alleges that on May 7, 2018, Defendant drove over a pedestrian who was crossing the street.
Discussion
CPL § 170.30(1)(e) provides that "(a)fter arraignment upon an information or misdemeanor complaint, the local criminal court may, upon motion of defendant, dismiss such instrument or any count thereof upon the ground that [t]he defendant has been denied the right to a speedy trial."
Pursuant to CPL § 30.30(1), the applicable speedy trial period is determined by the highest charge in the accusatory instrument. Where the highest charge is a class A misdemeanor, the People are required to state their readiness for trial within ninety (90) days of the commencement of the criminal action (See CPL § 30.30[1][b] ).
Defendant has the initial burden under CPL § 30.30 to demonstrate by sworn allegations of fact that there has been an inexcusable delay beyond the time set forth in the statute (See People v. Santos , 68 NY2d 859, 861 [1986] ). Once the defendant has alleged that more than the statutorily prescribed time has elapsed without a declaration of readiness by the prosecution, the prosecution bears the burden of establishing sufficient excludable delay (See Id. ; People v. Berkowitz , 50 NY2d 333, 348—349 [1980] ). The burden is on the People to ensure "in the first instance" that the record of the proceedings is sufficiently clear to enable the court deciding the 30.30 motion to make an informed decision as to whether the People should be charged (See People v. Cortes , 80 NY2d 201, 215-216 [1992] ).
Based on review of the court file and the submissions of the parties, the Court finds as follows:
October 18, 2018- November 14, 2018
On October 18, 2018, Defendant was arraigned and the matter was adjourned to November 14, 2018 for conversion. Accordingly, the People are charged with 27 days.
November 14, 2018- January 23, 2019
On November 14, 2018, the People announced not ready and the matter was adjourned to January 23, 2019 for conversion.
On November 16, 2018, the People filed an off-calendar statement of readiness with the Court. Attached to the statement of readiness was an affidavit of service, which indicated that the statement of readiness was served by mail on defense counsel on November 15, 2018.
Defendant contends that the statement of readiness was not mailed to defense counsel until December 6, 2018. Defendant provided a copy of the envelope sent by the People via certified mail to defense counsel stamped December 6, 2018, as well as the tracking record, which indicated that it was received by the United States Post Office on December 7, 2018 and delivered to defense counsel on December 10, 2018. Defendant asserts that he was not promptly notified of the People's readiness; therefore, the statement of readiness is invalid and the People did not effectively communicate readiness until the next court appearance, January 23, 2019. The People contend that the 30.30 clock stopped on November 16, 2018 when they filed a statement of readiness. The People assert that their affidavit of service is sufficient to demonstrate that they served defense counsel on November 15, 2018. Notably, the People do not address or in any other way acknowledge the evidence provided by Defendant.
The Court of Appeals has held that to be "ready for trial" within CPL § 30.30, "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, 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" ( People v. Kendzia, 64 NY2d 331, 337 [1985] ). When the statement of readiness is made in the absence of defense counsel, the People must "promptly notify" defense counsel of the statement of readiness (See People v. Kendzia, 64 NY2d at 388).
A 27-day delay between the filing of a statement of readiness and service on defense counsel did not constitute prompt notification (People v. Todd, 184 Misc 2d 381 [Crim Ct Kings County 2000] ). A 5-day delay between the filing of a statement of readiness and service on defense counsel did not constitute prompt notification (People v. Strafer , 10 Misc 3d 1072(A) [Crim Ct Kings County 2006] ).
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This Court finds the 20-day delay between the filing of the statement of readiness and the service on defense counsel is too extensive to constitute prompt notification. The 30.30 clock stopped on the date the envelope was mailed, December 6, 2018, not the date it was filed, November 16, 2018. However, even taking in account the unreasonable delay in mailing, the People are still within the time frame statutorily allotted.
Accordingly, the People are charged with 22 days.
January 23, 2019-March 13, 2019
On January 23, 2019, the People announced ready and the matter was adjourned to March 13, 2019 for discovery. Accordingly, no time is chargeable to the People.
March 13, 2019-April 12, 2019
On March 13, 2019, the People announced ready and the matter was adjourned to April 12, 2019 for hearings and trial. Accordingly, no time is chargeable to the People.
April 12, 2019-May 10, 2019
On April 12, 2019, the People announced not ready and requested 14 days. "[I]f a prosecutor requests that a case be adjourned after announcing readiness, the prosecution is only charged with the actual number of days that it requested" ( People v. Hodges , 12 AD3d 527 [2004] ). Accordingly, the People are charged with 14 days.
May 10, 2019-June 17, 2019
On May 10, 2019, a motion schedule was set for the within motion. Pursuant to CPL § 30.30(4)(a), this time for motion practice is excludable.
Accordingly, 63 days total are charged to People.
Conclusion
Defendant's motion to dismiss is denied.
The foregoing constitutes the Decision and Order of the court.