Opinion
Docket No. CR-023868-21SU
04-28-2022
The PEOPLE of the State of New York, Plaintiff, v. Holly HERLICH, Defendant.
Raymond A. Tierney, District Attorney of Suffolk County, Gavin O'Brien / Of Counsel, District Court Bureau, 400 Carleton Avenue, Central Islip, NY 11722 Attorney for Defendant, Christina Concetta Ford, Esq, LEGAL AID SOCIETY, SUFFOLK COUNTY, 400 Carleton Avenue, Central Islip, NY 11722
Raymond A. Tierney, District Attorney of Suffolk County, Gavin O'Brien / Of Counsel, District Court Bureau, 400 Carleton Avenue, Central Islip, NY 11722
Attorney for Defendant, Christina Concetta Ford, Esq, LEGAL AID SOCIETY, SUFFOLK COUNTY, 400 Carleton Avenue, Central Islip, NY 11722
Bernard C. Cheng, J.
On September 4, 2021, the defendant was charged with four offenses under the New York State Vehicle and Traffic Law ("VTL") law: violations of (1) section 1192(1) [Driving While Ability Impaired—Alcohol—with Two or More Prior Offenses Under 1192 within the Preceding Ten Years], an unclassified misdemeanor; (2) section 1198(9)(d) [Circumventing an Interlock Device], a class A misdemeanor; (3) section 511(2)(a)(1) [Aggravated Unlicensed Operation Motor Vehicle—Second Degree], an unclassified misdemeanor, and (4) section 509(1) [Motor Vehicle License Violation: No License], an infraction. The defendant was arraigned on September 14, 2021. By motion dated January 13, 2022, defendant moves this Court for an order dismissing the accusatory instrument pursuant to CPL section 30.30, and striking the Certificate of Compliance/statement of readiness [hereinafter "CoC"] pursuant to CPL sections 245.20 and 245.50.
The gravamen of the defendant's motion to dismiss is that the People (1) failed to file any CoC/statement of readiness with the Court (Def.’s Aff. at pp 20-32); (2) failed to produce statutorily-required automatic disclosures (Def.’s Aff. at pp 57-69); and (3) filed accusatory instruments that are legally insufficient (Def.’s Aff. at pp 33-56).
On March 24, 2022, this Court issued a preliminary order in which it ordered the People to provide the Court with a copy of the minutes from the September 4, 2021 arraignment. The People filed a copy of the requested minutes on April 14, 2022. This Court now addresses the parties’ arguments.
A. Failure to File a CoC
On January 1, 2020, new legislation affecting both CPL § 30.30 and CPL § 245.50 went into effect. The new law required the People to file a CoC with the court prior to announcing readiness under CPL § 30.30 (see CPL § 245.50[3] ). In order for the People to be ready for trial, the People must: "(1) file a certificate of good faith discovery compliance; (2) file a valid statement of readiness; and (3) certify the facial sufficiency of the accusatory instrument." ( People v Ramirez-Correa , Docket CR-018674-20QN [Crim Ct, Queens Cnty 2021] ).
Pursuant to CPL § 30.30(1)(b), the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal actions, taking into account all excludable time periods. The ultimate burden of proving that certain time periods should be excluded falls upon the People. (See People v Berkowitz , 50 NY2d 333 [1980] ).
Here, the People contend they filed a CoC on September 24, 2021, and a supplemental CoC on October 4, 2021, thus only the twenty-day delay from September 4, 2021 until September 24, 2021 is chargeable to them. (See People's Aff. at p 8, Exs. B & D). Notably, however, this Court's file contains no CoC at all filed by the People in this case. The non-filing of the CoC was discussed several times on the record. For example, on October 27, 2021, the defendant's counsel represented to the Court that the People had "filed a certificate of compliance with a docket number that [is] not before your Honor." (Def.’s Aff. at p 12, Ex. E, at p. 2). In response, the People stated that they had "supplementally certified this [case] on October 4th." Id. at p. 3. However, the Court noted that it did not "see a certification in the file." Id . On November 18, 2021, the Court again stated "People, again, there is an issue with the certification right now ... again, we don't have it, so that obviously needs to be addressed." (Def.’s Aff. at p 13, Ex. F, at pp. 2-3). On December 1, 2021, the Court again noted that "[the court] d[id] not have any certification from the People." (Def.’s Aff. at p 14, Ex. G, at p. 3). On December 17, 2021, the parties appeared and the Court set a motion schedule. The defendant filed the instant motion on January 13, 2022.
The People have attached as exhibits to their motion papers the CoCs dated September 24, 2021 (see People's Aff. in Opp. at Exhibit B) and October 4 (Exhibit D), both of which contain an incorrect docket number [CR-024089-21SU].
The Court's file contains a single CoC, which was filed by the defendant on October 19, 2021.
On December 1, 2021, the People stated that they filed a supplemental CoC on October 4, 2021, which included two docket numbers, one of which was the correct docket number. The Court's file contains no such CoC. Rather, the People's discovery disclosures dated October 4, 2021 contain two docket numbers, one of which was the correct docket number. (See People's Aff. in Opp. at Ex. C).
The People contend that the filing of the CoC with the incorrect docket number is, in essence, a mere "scrivener's error," and the CoC should be credited as filed, as it was filed in good faith and the defendant suffered no prejudice from the delay. (See People's Mem. of Law in Opp. Point I, pp. 11-14/62).
In general, courts have corrected a "scrivener's error" where such error was deemed harmless. See , e.g. , People v Husted , 179 Misc 2d 606, 607, 686 NYS2d 544, 545 [App Term 2d Dep't 1998] [affirming court's denial of motion to dismiss; finding scrivener's error in recording of date of breathalyzer test harmless]. However, in the context of the statutory requirement that the People file a CoC [ CPL § 30.30 ], several courts have recently rejected the argument that a ministerial or "scrivener's" error resulting in the non-filing of a CoC was harmless. See , e.g. , People v McNair , CR-008978-20SU [Dist Ct, Suffolk Cnty, January 14, 2022] [Cohalan, J.] [granting motion to dismiss on speedy trial grounds where People emailed defense counsel, but failed to file, CoC with court]; People v Zelaya , CR-0321114-20SU [Dist Ct, Suffolk Cnty, May 5, 2021] [Sachs, J.] [granting motion to dismiss on speedy trial grounds where the People served defense could with a CoC, but the court's file reflected no filing of a CoC]. Accord , People v Cruz , CR-002058-21KN [Crim Ct, Kings Cnty, September 14, 2021].
Courts have held that a CoC serves "one practical purpose: [i]t is a necessary prerequisite to a valid statement of readiness under CPL 30.30." People v Rosario , 70 Misc 3d 753, 757, 139 NYS3d 498, 502 [NY Co Ct 2020]. Without a valid CoC in the file, a court cannot proceed to trial. It does not appear from the transcripts of court minutes in this case that the People ever represented that they were, in fact, ready for trial in this case; nor would the fact that the People stated on the record that they were ready for trial be sufficient to satisfy the requirements of CPL § 30.30. See People v Zelaya , CR-0321114-20SU [Dist Ct, Suffolk Cnty, May 5, 2021] [Sachs, J.] ["[e]ven if [the People] had [made a statement of readiness in open court], to be valid a statement of readiness must be accompanied, or preceded, by the People's filing of a certificate of compliance with the discovery obligations imposed on them [by statute]"] [citing CPL § 245.50(3) ] ["the prosecution shall not be deemed ready for trial ... until it has filed a proper certificate pursuant to subdivision one of this section"].
In addition, this was not a one-time error; rather, the People were repeatedly informed by the Court that it had no CoC in the file, and repeatedly asked to file a corrected version. (Def.’s Aff. at pp 12-14, Exs. E, F, G).
Accordingly, the defendant's right to a speedy trial has been violated, rendering the remaining legal issues moot. Therefore, it is hereby:
ORDERED: The defendant's motion to dismiss Docket No. CR-02368-21SU due to a violation of her speedy trial rights is GRANTED.