Opinion
2019BX017942
11-26-2019
The PEOPLE of the State of New York, Plaintiff, v. Kimone JOHNSON-MCLEAN, Defendant.
For the People: Darcel D. Clark, District Attorney, Bronx County by Mabel Jimenez, Assistant District Attorney For Defendant: The Legal Aid Society by Anthony Graniere, Esq.
For the People: Darcel D. Clark, District Attorney, Bronx County by Mabel Jimenez, Assistant District Attorney
For Defendant: The Legal Aid Society by Anthony Graniere, Esq.
Shahabuddeen Ally, J.
The defendant is charged with aggravated harassment in the second degree (PL § 240.30[1][a] ). She now moves by notice of motion and affirmation filed October 21, 2019 to dismiss the charge on the ground that she has been denied her statutory right to speedy trial under CPL § 30.30. The People oppose by affirmation filed November 25, 2019.
After consideration of the parties' submissions, relevant law, and the court file, the court finds that the People have exceeded their statutory speedy trial time by failing to file a fully converted information within the requisite 90-day period. Accordingly, the defendant's motion to dismiss is granted .
Procedural History
The defendant was arraigned on July 3, 2019 on a complaint sworn to by Police Officer Nicole Longo as informed by a complainant referred to as "Catifah Morgan". On that date, the People conceded that they needed the informant's supporting deposition and the case was adjourned for conversion. The People did not provide a supporting deposition on the next court date of August 6, 2019 and the case was adjourned to October 8, 2019 for conversion.
On September 26, the People filed and served off-calendar a statement of readiness along with a copy of the original complaint (naming "Catifah Morgan") and a supporting deposition signed by one "Latifah Morgan." Notably, on the supporting deposition, the name "Catifah" appears in the typed portion but with the "C" scratched out and replaced with a handwritten "L" and the initials "LM."
On the next court date, October 8, 2019, the defendant objected to the People's statement of readiness, arguing that a supporting deposition signed by a person not named in the complaint was inadequate to convert the complaint to an information. The court agreed. The People then made an application to amend the complaint to conform to the supporting deposition, which was denied by the court. Later that same day, the People filed and served a superseding information sworn to and signed by "Latifah Morgan."
The defendant filed the instant motion on October 21, 2019. In court on October 29, 2019, the court set a deadline of November 8, 2019 for the People to respond. The People did not submit their response until November 25, 2019.
The Parties' Contentions
The defendant asserts that the People have exceeded their statutory speedy trial time because they did not make a valid statement of readiness prior to October 10, 2019. The defendant's position is that because the September 26, 2019 supporting deposition was signed by a person not named in the original complaint, it was not enough to convert the complaint to an information and therefore the accompanying statement of readiness was illusory. While conceding that the People's superseding information, filed on October 8, 2019, was a facially sufficient first-party complaint, the defendant avers that because the document was postmarked on October 10, 2019, the People should be charged until the later date.
The People take the position that the speedy trial clock was stopped by their September 26, 2019 statement of readiness, notwithstanding the court's determination that the accusatory instrument had not been properly converted. The People argue that the statement of readiness should stand because defendant has not made an adequate showing that the statement of readiness was illusory. The People further argue that the court should have granted their application to amend the informant's name on complaint, as the error was a "typographical" one that caused "no surprise or prejudice" to the defendant (People's Affirmation at 6).
Analysis
The defendant is charged by criminal court complaint with aggravated harassment in the second degree, a class A misdemeanor punishable by up to one year incarceration. CPL § 30.30(1)(b) provides that a motion to dismiss must be granted if the People are not ready for trial within "ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony ..." In calculating chargeable time, the court must first calculate the period of time between the filing of an accusatory instrument and the People's declaration of readiness for trial, less any time statutorily excludable and plus any post-readiness delays attributable to the People ( CPL § 30.30 ; People v. Cortes , 80 NY2d 201, 208 [1992] ).
Before they may declare readiness for trial, the People must have done "all that is required of them to bring the case to a point where it may be tried" ( People v. England , 84 NY2d 1, 4 [1994] ). At that point, the People are deemed ready for trial only if they have stated their readiness in open court or by written notice to defense counsel and the Court ( People v. Kendzia , 64 NY2d 331, 337 [1985] ). After the People have announced their readiness, the People are charged for adjournments caused solely and exclusively by the People, providing that the time is not otherwise excludable under CPL § 30.30(4) (see People v. Cortes , 80 NY2d 201, 210 [1992] ).
Once the defendant has alleged that the People have failed to announce their readiness within the statutorily prescribed time period, the People bear the burden of establishing sufficient excludable delay (see People v. Berkowitz , 50 NY2d 333, 349 [1980] ). The People must identify the statutory exclusions on which they are relying to bring them within the statutory time limit for declaring readiness (see People v. Cortes , 80 NY2d 201, 208 [1992] ). Further, the People have the burden of making a record sufficient to enable the Court to make a determination as to each adjournment ( id. at 215-216 ). If the statutorily prescribed period elapses without sufficient excludable time established, the charges at issue must be dismissed upon motion by the defendant ( CPL §§ 30.30[1] ; 210.20).
Where criminal charges are commenced by way of misdemeanor complaint, the complaint must first be converted into an information that, together with any supporting depositions: (1) alleges facts of an evidentiary character supporting or tending to support the charges, pursuant to CPL § 100.15(3) ; (2) provides reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) includes non-hearsay factual allegations, which, if true, establish every element of the offense charged (see CPL § 100.40[1][a]-[c] ).
A criminal complaint that relies on hearsay allegations must be accompanied by "sufficient supporting depositions ... that remove all hearsay from the complaint and thereby establish a prima facie case against the defendant" ( People v. Flores , 189 Misc 2d 665, 666 [Crim Ct, Queens County 2001] ). The People cannot be ready for trial on a facially insufficient instrument or an unconverted misdemeanor complaint ( People v. Colon , 110 Misc 2d 917, 920 [Crim Ct, New York County 1981], affd 59 NY2d 921 [1983] ; see also People v. Santini , 59 Misc 3d 223 [Crim Ct, New York County 2018] ; People v. N.S. , 58 Misc 3d 613 [Crim Ct, Queens County 2018] ).
The People contend that notwithstanding the court's determination that the September 26, 2019 supporting deposition was insufficient to convert the original complaint to an information, the statement of readiness filed on that date was effective. The People's argument draws from People v. Brown , in which the Court of Appeals held that an off-calendar statement of readiness is "presumed truthful and accurate" unless and until a defendant can "demonstrate that it is illusory by showing that the People were not ready at the time they filed it" ( 28 NY3d 392, 405-407 [2016] ). The People assert that the defendant has failed to so demonstrate.
However, in order to be effective, a statement of readiness must convey a state of actual readiness for trial (see People v. England , 84 NY2d 1, 4 [1994] ; People v. Kendzia , 64 NY2d 331 [1985] ). "Actual readiness" presupposes a jurisdictionally valid accusatory instrument conforming to the requirements of CPL § 100.40 ( People v. Dreyden , 15 NY3d 100 [2010] ). Without a fully converted, facially sufficient information, any statement of readiness by the People is illusory and ineffective (see id. ; People v. Colon , 110 Misc 2d 917, 920 [Crim Ct, New York County 1981], affd 59 NY2d 921 [1983] ; People v. Santini , 59 Misc 3d 223 [Crim Ct, New York County 2018] ; People v. N.S. , 58 Misc 3d 613 [Crim Ct, Queens County 2018] ).
Here, the People filed a supporting deposition signed by a person other than the informant named in the complaint, which was insufficient to convert the complaint into an information. Upon the court's determination that the supporting deposition was insufficient, the People moved to amend the complaint to match the name of the supporting deposition's signatory. The People do not argue in their motion papers that the supporting deposition should have been sufficient to convert the complaint, but rather rely on their argument that their proposed amendment to the complaint should have been permitted.
The People cite to People v. Easton , (307 NY 336 [1954] ) and People v. Hardy , (63 Misc 3d 6 [App Term, 2d Dept 2d, 11th, and 13th Jud Dist 2019] ), two cases in which the courts approved the People's amendment of complaints which erroneously listed dates that had not yet come to pass. These cases are distinguishable from the instant matter, however, which involves a discrepancy that could not be fairly be viewed as an obvious typographical error.
Nor is it a discrepancy devoid of possible prejudice to the defendant. Unlike the amendment permitted to the complaint in People v. Donadeo , ( 44 Misc 3d 1201[A][Crim Ct, Queens County 2014] ), also cited by the People, which was made on the same day as the defendant's arraignment on the complaint and accompanied by a supporting deposition signed by the proper individual, here the People did not move to amend the instant complaint until October 8, 2019, 97 days after the defendant's arraignment. During these 97 days, the defendant was not on notice of the actual name of the alleged victim and thus was unable to properly and thoroughly prepare a defense.
There is no reason the People could not have filed a superseding information on September 26, 2019, when they obtained the supporting deposition from the complainant and thus were clearly on notice that her name was different from the name listed on the complaint. If they had filed a superseding instrument with the correct name on that date, the People would still be within their statutory speedy trial period with a valid and properly converted information. Alternatively, upon becoming aware of the name discrepancy in the complaint, the People could have advanced the case to move to amend the complaint before the expiration of their speedy trial time. If such application were denied, the People would have sufficient time to file a superseding information if so directed by the court.
The court ultimately need not decide the propriety of the People's proposed amendment as such application was not made until after the People's speedy trial allotment had expired. The court similarly need not determine whether the period between October 8, 2019 and October 10, 2019 is chargeable to the People, as the defendant contends, because the People would be beyond their speedy trial time even with that period excluded from the calculation.
Based on the foregoing, the court finds that the People have failed to file and serve a fully converted and thus jurisdictionally valid information until October 8, 2019, 97 days after the commencement of the case on July 3, 2019. As such, the People have exceeded the speedy trial period set forth in CPL § 30.30(1)(b) and the defendant's motion to dismiss is granted.
This constitutes the decision and order of this court.