Opinion
No. 2015BX004851.
05-07-2016
The PEOPLE of the State of New York, Plaintiff, v. Victoriano HERNANDEZ, Defendant.
Darcel D. Clark, District Attorney, Bronx County by Ketaki Chakrabarti, Assistant District Attorney, for The People. The Legal Aid Society by Megan Foley, Esq., for Defendant.
Darcel D. Clark, District Attorney, Bronx County by Ketaki Chakrabarti, Assistant District Attorney, for The People.
The Legal Aid Society by Megan Foley, Esq., for Defendant.
ARMANDO MONTANO, J.
Defendant is charged with Driving While Intoxicated (VTL §§ 1192[2] and [3 ] ), Driving While Ability Impaired by Alcohol (VTL § 1192[1] ), and Reckless Driving (VTL § 1212 ).
Defendant moves pursuant to CPL §§ 170.30(1)(e) and 30.30 to dismiss count three, VTL § 1192(2), on speedy trial grounds.
The top count of the accusatory instrument is an unclassified misdemeanor, which is punishable by a sentence of imprisonment of up to one year. PL § 55.10(2)(c); VTL § 1193(1)(b). Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within 90 days of the commencement of a criminal action where the defendant is charged with one or more offenses, at least one of which is a misdemeanor punishable by sentence of imprisonment of more than three months, and none of which is a felony.
Defendant argues that count three, VTL § 1192(2), must be dismissed as more than 100 days of 30.30 time has elapsed. Since this action commenced on February 3, 2015, defendant asserts that the People have never 1) stated ready as to count three, VTL § 1192(2) or 2) provided the supporting deposition of PO Michael Maksimchak to convert count three, VTL § 1192(2).
In opposition, the People concede that they stated not ready as to all counts at arraignment in error. Shortly thereafter, the People aver that they filed with the court and served on defense counsel a statement of readiness as to counts one, two, and four on February 5, 2015. On April 22, 2015, the People filed with the court and served on defense counsel, a statement of readiness on all counts along with the necessary supporting deposition. The People contend that they should only be charged with 6 days for counts one, two, and four and 82 days for count three.
“Whether the People have satisfied [their 30.30] obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion.” People v. Cortes, 80 N.Y.2d 201, 208 (1992). For CPL § 30.30 purposes, in order for the People to be “ready for trial”, the People must satisfy two elements. First, there must be a communication of readiness by the People which appears on the trial court's record by way of either a statement of readiness in open court or a written notice of readiness sent by the prosecutor to both defense counsel and the court clerk. People v. Kendzia, 64 N.Y.2d 331 (1985). Second, the People must declare their readiness when there are in fact ready to proceed to trial. Id. at 337.
Defendant has met his initial burden “by alleging that the prosecution failed to declare readiness within the statutorily prescribed time period.” People v. Luperon, 85 N.Y.2d 71, 77–78 (1995). To survive dismissal, the People must establish sufficient periods of excludable delay. People v. Santos, 68 N.Y.2d 859 (1986) ; People v. Berkowitz, 50 N.Y.2d 333 (1980). “[O]nce the People set forth the statutory exclusions on which they intended to rely, defendant [must] identify the specific legal and factual impediments to those exclusions.” People v. Beasley, 16 NY3d 289, 292 (2011).
CPL § 170.30(1)(e) provides that the court may dismiss the accusatory instrument or any count thereof where the defendant has been denied his right to a speedy trial. Therefore, “a defect in a count does not necessarily require dismissal of all counts of a multi-count accusatory instrument.” People v. Minor, 144 Misc.2d 846, 848 (App Term, 2d Dept.1989) ; see also, People v. Naim, 46 Misc.3d 150(A) (App Term, 1st Dept.2015) ; People v. Miglio, 17 Misc.3d 165 (Crim Ct, Kings County 2007). Under partial conversion, each count in a complaint is treated separately for speedy trial purposes.
At defendant's arraignment on February 3, 2015, pursuant to 22 NYCRR 200.5, Cynthia Pong, an attorney from the Legal Aid Society, filed a notice of appearance with the court. The Legal Aid Society has been the attorney of record for defendant since that time. Despite defendant's assertions that the People have never stated ready nor converted count three, the statement of readiness and supporting deposition filed with the court and served on defense counsel on April 22, 2015 proves otherwise.
The affidavit of service indicates that Katherine Brayan, a paralegal in the Criminal Court Bureau, mailed copies of the statement of readiness and supporting deposition to Cynthia Pong at the Legal Aid Society located at 260 East 161st Street, Bronx N.Y. 10451 on April 22, 2015. The affidavit of service attesting that these two documents were mailed to the correct business address of the office of defense counsel “raises a presumption that a proper mailing occurred.” Engel v. Lichterman, 62 N.Y.2d 943, 944 (1984). Defendant does not challenge the propriety of the affidavit of service in any way. As such, defendant has failed to rebut the presumption of proper mailing. See, Kihl v. Pfeffer, 94 N.Y.2d 118 (1999) ; Colucci v. Zeolla, 138 A.D.2d 286 (1st Dept.1988). Based on the foregoing, this court finds that service of the statement of readiness and the supporting deposition on defense counsel was complete on April 22, 2015 (CPLR 2103[b][2] ) and effectively stopped the speedy trial clock as to count three.
Upon review of the court action sheet and the People's papers in opposition, consisting of detailed calculations of includable and excludable time as well as the reasons for each adjournment, this court finds that there is a total of 82 days of includable time for count three. Thus, the People have not exceeded the statutorily prescribed time of 90 days.
Accordingly, defendant's motion, pursuant to CPL §§ 170.30(1)(e) and 30.30, to dismiss count three, VTL § 1192(2), is denied.
This constitutes the decision and order of this court.