Opinion
No. 2013KN089199.
01-28-2015
The PEOPLE of the State of New York, v. Carl JACKSON, Defendant.
KeAupuni Akina, Esq., District Attorney's Office, for the King's County. Jenny S. Cheung, Esq., Legal Aid Society, for Defendant.
KeAupuni Akina, Esq., District Attorney's Office, for the King's County.
Jenny S. Cheung, Esq., Legal Aid Society, for Defendant.
Opinion
JOHN T. HECHT, J.
Defendant Carl Jackson is charged with the unclassified misdemeanors of Driving While Intoxicated (Vehicle and Traffic Law [VTL] § 1192[2] and [3 ] ) and Aggravated Driving While Intoxicated (VTL § 1192[2a][a] ), and the traffic infractions of Driving While Ability Impaired (VTL § 1192[1] ), Excessive Speed (VTL § 1180[a] ), Operation Outside of Lane (VTL § 1128 [a] ), and Failure to Obey Traffic Control Signal (VTL § 1111[d][1] ), based on the allegation that at approximately 12:50 AM on November 22, 2013, in Brooklyn,
Defendant was observed driving a 2005 Dodge Caravan New York State License No. EVV64C9 at a high rate of speed, failing to stay in [his] lane and failed to stop at a steady red light [and] defendant exhibit[ed] signs of intoxication: to wit, slurred speech, red watery eyes, odor of alcoholic beverage on breath and an unsteady gait. [And] defendant submitted to a chemical test to determine [his] blood alcohol concentration with a result of .191% alcohol content.
Defendant moves, pursuant to Criminal Procedure Law (CPL) sections 170.30(1)(e), 30.20 and 30.30(1)(b), for an order dismissing this prosecution on speedy-trial grounds. The People oppose. The motion has been referred to me for decision. Based on the parties' submissions and my review of the record, and for the reasons that follow, defendant's CPL 30.30(1)(b) motion is granted as to the misdemeanor offenses and his 30.20 motion is denied.
The action commenced on November 22, 2013, when defendant was arraigned. The case was adjourned to January 13, 2014 for discovery. 0 days are included (CPL 30.30[4][a] [period for defendant's benefit, including discovery, excluded]; People v. Dorilas, 19 Misc.3d 75, 76 [App Term, 2d Dept 2008] [time for discovery by stipulation excluded] ).
On January 13, the People served and filed discovery and announced that they were ready for trial. The case was adjourned to February 26 for trial. On February 26, the People were not ready for trial and requested 8 days to prepare for trial. The case was adjourned to April 3. On April 3, the People again were not ready for trial and requested 8 days to prepare a witness. The presiding judge indicated that the People would be charged until they served and filed a statement of readiness. The case was adjourned to May 14. The People served and filed an off-calendar statement of readiness on April 7.
On May 14, the People were not ready for trial because the assigned Assistant District Attorney was in training. The People requested a 13–day adjournment. The case was adjourned to June 25 for trial.
On June 25, the People were not ready because a police witness was unavailable; they requested 8 days. The case was adjourned for trial the requested 8 days, to July 3.
On July 3, the People were not ready because the assigned Assistant District Attorney was sick; they requested 8 days. The presiding judge indicated that the People would be charged until they served and filed a statement of readiness. The case was adjourned to August 4. There was no intervening statement of readiness.
On August 4, the People were not ready because the arresting officer had not been notified. They requested 7 days. Once again, the presiding judge stated that the People would be charged until they served and filed a statement of readiness. The case was adjourned to October 1 for trial. On August 15, the People served and filed a statement of readiness.
On October 1, the People were not ready because the arresting officer was off that day. The People requested 1 day. The presiding judge indicated that the People would be charged until they served and filed a statement of readiness. The case was adjourned to December 11 for trial. On October 3, the People filed another statement of readiness.
On December 10, defense counsel filed the motion under consideration, and on December 11, the case was adjourned to January 30, 2015, for decision.
Relying on the Court of Appeals' decision in People v. Sibblies, 22 NY3d 1174 [2014], the defense argues that the People should be charged with eight adjournments (from January 13 to February 26; February 26 to April 3; April 3 to May 14; May 14 to June 25; June 25 to July 3; July 3 to August 4; August 4 to October 1; and October 1 to October 3) because the People were not ready for trial eight successive times.
In Sibblies, the People filed an off-calendar statement of readiness on February 22, 2007, and then subpoenaed medical records of the complainant 8 days later (Sibblies, 22 NY3d at 1175 ). At the next court date, on March 28, 2007, they announced that they were not ready for trial because they were “continuing to investigate and were awaiting medical records” (id. ). The issue addressed in Sibblies was whether the off-calendar statement of readiness was belied by the People's subsequent failure to be ready when the case was next calendared.
A concurring opinion in Sibblies would impose a burden on the People, if challenged, to “show in response to such a challenge that some exceptional fact or circumstance arose after their declaration of readiness so as to render them presently not ready for trial” if the People wish to “preserve[ ] such portion of the readiness period as remained available when readiness was originally declared” (id. at 1178 ). To the extent that Sibblies may be read to contemplate such a burden, the People failed to meet it on February 26 and April 3, when, on the record at the calendar calls, they asked for additional time to prepare for trial. I note that in their papers opposing the present motion the People also fail to explain why they still needed to prepare for trial in February and April after they had announced that they were ready for trial in January.
A second concurrence in Sibblies presumed “that a statement of readiness is truthful and accurate” (id. at 1180–81 [citing People v. Acosta, 249 A.D.2d 161, 161 [1st Dept 1998] ] ), but would charge the People with speedy-trial time when a statement of readiness is followed by an unexplained lack of readiness and there is “proof that the readiness statement did not accurately reflect the People's position” (id. [quoting People v. Carter, 91 N.Y.2d 795, 799 [1998] ] ). Here, as in Sibblies, the People's own statements in February and April that they needed additional time to prepare for trial proved that their January declaration of trial readiness was illusory.
The People argue that Sibblies does not apply where, as here, the People announced in court, rather than off-calendar, that they were ready for trial.
It is true that Sibblies factually dealt with an off-calendar statement of readiness and that there is language in Chief Judge Lippman's concurrence suggesting that the off-calendar nature of the statement of readiness was significant (Sibblies, 22 NY3d at 1178 [“Where the People file an off-calendar certificate of readiness and subsequently declare at the next court appearance that they are not ready, a defendant understandably may be perturbed. This case, however, illustrates the need for clarification.”] ).
It is also true that, as the People say, they announced ready for trial in court, rather than off-calendar, on January 13, 2014. But January 13 was not a trial date; it was a date for the People to serve discovery. The readiness statement then, at a time when the People would not be expected to start a trial and have their witnesses available, is effectively no different from an off-calendar statement of readiness. It may be true but it does not start a trial. As Chief Judge Lippman observed in his Sibblies concurrence, when the People announce their readiness off-calendar, “the defendant is prevented from availing herself of the People's readiness. This would be readiness in the air, without readiness on the ground. If the defendant cannot ask for a trial, the People's readiness has served effectively to harm the defendant by delaying the running of the statutory period” (Sibblies, 22 NY3d at 1178 ). Here, similarly, by announcing “ready” on a date when the case was not on for trial (and thus the “defendant cannot ask for a trial”), the People accomplished the same thing as they would have with an off-calendar statement of readiness: they attempted to toll the 30.30 clock without having to actually be ready for trial.
The concurrence of Judge Graffeo in Sibblies provides even less support for the People's argument that Sibblies applies only to off-calendar statements of readiness, for that opinion makes no distinction between an in-court and an off-calendar statement of readiness. Its reasoning applies to both: any statement of readiness must (and is presumed to) reflect actual readiness but can be belied by a subsequent lack of readiness and proof that the readiness declaration was untrue.
Accordingly, on either reading of Sibblies, the People are charged with the period from January 13 to April 7 (84 days), when they filed a new statement of readiness.
The People's explanation on May 14 that the assigned Assistant District Attorney was in training meets their burden to explain why they were not ready on that day without also undermining the prior readiness statement; therefore, their requested 13 days alone are chargeable, as they concede.
On June 25, their explanation that they needed 8 additional days to secure a witness is, also as conceded, a sufficient explanation to preserve any remaining speedy-trial allotment.
While the sickness of the assigned Assistant District Attorney on July 3, requiring 8 days, and the need on August 4 for 7 days and on October 1 for 1 day to secure the arresting officer may not have undermined the prior statements of readiness, the presiding judge, apparently not presuming continued readiness based on the history of the case (see People v. Betancourt, 217 A.D.2d 462, 466 [1st Dept 1995] ), advised the People on July 3, August 4 and October 1, that they would be charged not only with the time that they requested but also until a new statement of readiness was filed. I need not address these adjournments other than to note that the People concede 32 days from July 3 until August 4, 11 days from August 4 until the August 15 statement of readiness, and 2 days from October 1 until the October 3 statement of readiness.
On December 10, defense counsel filed the present motion and on December 11 the case was adjourned for decision to January 30, 2015. 0 days are chargeable (CPL 30.30[4][a] [period for motion practice excluded] ).
Based on this analysis, the total chargeable time is 150 days. Because this exceeds the 90–day allotment (see CPL § 30.30[1][b] ), defendant's motion to dismiss on speedy-trial grounds, pursuant to CPL 170.30(1)(e) and 30.30(1)(b), is granted as to the misdemeanor charges.
The speedy-trial statute does not apply to traffic infractions (see People v. Gonzalez, 168 Misc.2d 136 [App Term, 1st Dept 1996] ). This follows from the fact that CPL 30.30 applies by its terms to felonies, misdemeanors, and violations, whereas traffic infractions are none of these. (They are “petty offenses” but not “violations” [see Penal Law § 10.00[3], [4], CPL § 1.20 [39 ]] ). Nonetheless, defendant has a constitutional right to a speedy trial embodied in CPL 30.20, and he asserts that it was violated here.
In determining whether a defendant has been denied his constitutional right to a speedy trial, the following factors must be considered: “(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” (People v. Taranovich, 37 N.Y.2d 442, 445 [1975] ).
Approximately 8 months have passed between the People's April 7 readiness statement and the defense motion to dismiss. Although the April statement of readiness was filed more than 4 months after defendant's arrest, bringing the total time this case was pending prior to defense's motion to approximately 13 months, an adjournment of almost 2 months of that time was for defendant's benefit (to provide him with discovery), and court congestion explains much of the remainder. Courts have refused to set a bright-line rule as to when the People's delay in prosecution exceeds defendant's right to a speedy trial (id. ). The Appellate Term has found that a 14–month delay does not require a case to be dismissed (see People v. Gordon, 2 Misc.3d 134[A] [App Term, 9th & 10th Jud Dists 2001] [14–month delay not sufficient to require dismissal; defendant failed to establish delay impaired defense], lv denied 3 NY3d 674 [2004] ). The delay in this case, which is less than 14 months-in fact only about a third of that when considering time chargeable to the prosecution-is not of constitutional dimension.
Second, the delay in this case is attributable not only to the People's requests for adjournments but also, as noted, to defendant's request for discovery and to court congestion. The delay attributable to the People was often due to the unavailability of witnesses or an Assistant District Attorney's unavailability because of training or illness. These do not appear to be deliberate attempts by the People to keep defendant from his day in court (Taranovich, 37 N.Y.2d at 446 ).
Third, although the traffic infractions at issue are minor offenses that should be disposed of quickly (see People v. Letterio, 16 N.Y.2d 307 [1965] [traffic infractions are a form of misconduct distinguishable from more serious breaches of the law or crimes] ), they were linked to more serious charges until the present statutory dismissal motion was here granted.
Fourth, there has been no pretrial incarceration.
Fifth, although defendant contends that the passage of time has impaired his memory as well as that of potential witnesses, this bare claim is not specific enough to allow the Court to conclude that the delay may have affected defendant's likelihood of acquittal (Taranovich, 37 N.Y.2d at 447 ).
Together, the factors do not indicate that defendant has been deprived of his constitutional right to a speedy trial. Accordingly, his motion pursuant to CPL 30.20 is denied.
The foregoing constitutes the decision and order of the Court.