Opinion
No. 2013KN058780.
07-07-2014
The PEOPLE of the State of New York, v. Michael KELLY, Defendant.
District Attorney, Kings County, by ADA Gillian DiPietro, for People. Kenneth F. Smith, for Defendant.
District Attorney, Kings County, by ADA Gillian DiPietro, for People.
Kenneth F. Smith, for Defendant.
Opinion
LAURA R. JOHNSON, J.
On July 30, 2013, the defendant was arraigned on a misdemeanor complaint charging him with several offenses, the top count being a violation of PL § 120.00(1), Assault in the Third Degree, a Class A misdemeanor. By Notice of Motion filed April 24, 2013, defendant moves to dismiss the accusatory instrument upon the ground that he has been denied his statutory right to a speedy trial (CPL § 170.30[1][e] and CPL § 30.30[1][b] ). The People oppose defendant's motion. For the following reasons, defendant's motion to dismiss is granted.
ANALYSIS
CPL § 30.30 requires that, allowing for any time subject to exclusion, the People must be ready to try a defendant accused of a misdemeanor within 90 days of the commencement of the action (CPL § 30.30[1][b] ). The People's declaration of readiness may be made in open court, or by filing and serving of an off-calendar Certificate of Readiness. CPL § 30.30(1)(b) ; People v. Stirrup, 91 N.Y.2d 434, 440 (1998). It is not enough for the People merely to say that they are ready; they must “in fact be ready to proceed at the time they declare readiness.” People v. Chavis, 91 N.Y.2d 500, 505 (1998). Furthermore, CPL § 30.30 is a speedy trial provision, and the People must therefore be ready for trial, not merely ready for some pre-trial proceeding. People v. Chavis, 91 N.Y.2d at 502;People v. Khachiyan, 194 Misc.2d 161 (Crim Court, Kings County 2002). Where a statement of readiness is followed by a statement of non-readiness, the earlier statement will be deemed to have been illusory absent justification for the subsequent unreadiness. People v. Sibblies, 22 NY3d 1174 (2014)
Here, the defendant has alleged a delay in excess of 90 days. Accordingly, the burden of demonstrating sufficient excludable time is on the People. People v. Santos, 68 N.Y.2d 859 (1986) ; People v. Berkowitz, 50 N.Y.2d 333, 349 (1980).
Time Calculations
The defendant alleges that 121 days of chargeable time had elapsed as of March 6, 2014. The People take the position that only 87 days of chargeable time had elapsed as of March 12, 2014. The Court, having reviewed the defendant's moving papers, the People's responding papers, the court file, and the applicable law, reaches a third conclusion: the People have accrued 93 days of chargeable time.
July 30, 2013 to August 2, 2013—Arraignment to Conversion of Complaint [3 days charged]
Defendant was arraigned on the accusatory instrument on July 30, 2014. The case was adjourned to August 2, 2013. On August 2, the People filed a supporting deposition, thereby fully converting the accusatory instrument to a triable non-hearsay information.
The People concede that they should be charged with 3 days. The counting of chargeable time begins upon the commencement of the action, which in this case was at the arraignment on July 30, 2013. People v. Stiles, 70 N.Y.2d 765 (1987). The month of July has 31 days. The People converted the charging instrument on August 2. The People are charged with 3 days.
August 2, 2103 to November 7, 2013—Conversion of Complaint to Calendared for Hearings and Trial [0 days charged]
The parties agree that all time after the conversion of the complaint is excludable until November 7, 2013, the first date on which the case was on the calendar for hearings and trial.
Although the parties do not dispute the excludability of any of these adjournments, some discussion of what transpired during this interval is significant to the interpretation of later adjournments. On August 2, 2013, the case was on the calendar for the People to convert any hearsay in the complaint. When the People filed a supporting deposition, they also announced that they were “ready.” (P's Ex. 1, Minutes of August 2, 2013 at 2.) On August 14, 2013, the People filed and served discovery materials and again announced that they were “ready.” (Court Action Sheet, noting “R”). The People maintain that these declarations render all subsequent adjournments subject to assessment as “post-readiness” adjournments. (See P's Mtn at 6.) This is not correct.
Not all statements of readiness are equal. For instance, a statement that the People are ready for pretrial hearings is not a statement of readiness for trial sufficient to toll the 30.30 clock. People v. Chavis, 91 N.Y.2d 500 (1998). It has long been noted that in Brooklyn Criminal Court, there is “a culture that has permitted the People to use the word ready' in a myriad of situations not contemplated by CPL 30.30 and the governing case law.” People v. Khachiyan, 194 Misc.2d 161, 164 (Crim Court, Kings County 2002). Among these are the People's practice of declaring readiness routinely upon conversion when, if pressed, they concede that the declaration means only that they have converted the accusatory instrument. Id. This, of course, is not the trial readiness required by CPL § 30.30.
Here, after the People's first statement that they were “ready,” the case was adjourned for discovery. When the parties returned to court, the People served and filed discovery. Because the Brooklyn District Attorney's Office routinely grants “open file discovery,” it is generally not necessary for the defense to make formal motions. Instead, the periods of adjournment for Discovery By Stipulation (DBS, as it is called), are excludable as the equivalent of pre-trial motions under CPL § 30.30(4)(a), as are oral requests for discovery. People v. Dorilas, 19 Misc.3d 75, 76–77 (App Term, 2nd and 11th Jud Dists 2008) ; see also People v. Ramos, 39 Misc.3d 1212(A) (Crim Ct, Kings County 2013) (unreported).
The defendant was not in court when the People filed and served discovery, and a bench warrant was ordered. The subsequent adjournment, as well as the adjournment when the defendant appeared the next day, are excludable. This is undisputed.
The People are charged with 0 days.
November 7 to November 27—Adjournment for Hearings and Trial [20 days charged]
On November 7, 2013, the first time the case was on for hearings and trial, the People announced that they were not ready, and requested a 14 day adjournment. They gave no reason for their unreadiness, or for the request for a two week adjournment. The court adjourned the case to November 27. Also at that November 7 appearance, defendant's attorney made a “verbal request of the prosecutor for the BCI photo, as well as the 9–1–1,” which he asserted “are not only Rosario material but Brady material,” and he further requested “the psych history of the complaining witness” (P's Ex. 4, Minutes of November 7, 2013, at 3).
Contrary to defendant's assertion (Motion ¶¶ 21–22), the People were not instructed on November 7 that they would be charged with all time until they filed a written Statement of Readiness. Instead, the Court noted on the record, “I'm putting that on for hearings and trial. People are requesting 14 days,” and asked the defense attorney, “Is November 27th good for counsel?” (P's Ex. 4, Minutes of November 7, 2013, at 4). However, as discussed above, the People's prior announcements that they were “ready” at the time they converted the Complaint and filed discovery materials do not necessarily make the additional time added on by the court excludable as post-readiness delay due to court congestion. People v. Chavis, 91 N.Y.2d 500 (1998). In fact, this Court rejects the People's contention that this was a “post-readiness” request for which they should be charged only the 14 days they requested. Notably, when the case was next on the calendar, on November 27, the People were still not ready. This time, they announced, “The office has not completed its investigation yet.”
Although the People's earlier declarations of “readiness” were made in open court rather than by off-calendar written Statement of Readiness, the situation here is otherwise indistinguishable from the situation in People v. Sibblies, 22 NY3d 1174, 1176, 1180 (2014). The People must therefore be charged with the entire 20 day adjournment, irrespective of whether there was any intervening written Statement of Readiness (which, during this adjournment, there was not). In light of the People's well-documented custom of stating “ready” when they simply mean that they have taken the next necessary step—for instance, converting the complaint or providing discovery—the Court declines to assume that the People's statements on August 2 or August 14 were genuine declarations of trial readiness. Moreover, any such claim is undermined by the People's concession on November 27 that they were unable to proceed to trial because their investigation of the case was ongoing. The People are charged with 20 days.
Nor are the People saved from being charged for this time by defendant's having made an additional “verbal request” for “Brady material.” A date had previously been set for the People to provide discovery materials, and they had met that deadline in August. Defendant then requested these additional materials, which apparently had not yet been provided as of November 7. The People may not postpone their obligation to be ready for trial merely by providing discovery materials to the defense in piecemeal fashion. There is no exclusion of the time prior to the production of Rosario material, which may technically wait until the commencement of trial (CPL § 240.45 ), and the People have a continuing obligation to disclose exculpatory material, regardless of the trial-ready posture of the case (CPL § 240.60 ).
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November 27, 2013 to January 22, 2014—People Not Ready [56 days charged]
As noted above, on November 27, 2013, the People were still not ready, and again stated, “The office has not completed its investigation yet.” (P's Ex. 4, Minutes of November 27, 2013, at 2.) Although the People requested a 7–day adjournment, the court stated that, “since they were not ready last time,” the People would be charged with all time until they filed a written Statement of Readiness. (P's Ex. 4, Minutes of November 27, 2013, at 3–4.) The case was adjourned to January 22, 2014 for hearing and trial, during which time no Statement of Readiness was filed. The parties agree that none of this time is excludable. The People are charged with 56 days.
January 22 to January 30, 2014—People Not Ready to Filed Statement of Readiness [8 days charged]
As of January 22, 2014, the People had not filed any Statement of Readiness. The People once again stated that they were not ready, and requested an adjournment of 10 days. However, the court instead adjourned the case to March 6, and warned the People that they would be charged with all time until they filed a Statement of Readiness (See, P's Ex. 5, Minutes of January 22, 2014 at 3; Court Action Sheet: “People remain charged until SOR”). The case was adjourned to March 6 for hearing and trial.
On January 30, 2014, the People filed a Statement of Readiness with the court, and served a copy on defense counsel by certified mail. The document is dated January 29, but the court's stamp indicates it was filed on January 30, and the People concede as much. The People are charged with 8 days.
January 30 to March 6—SOR to In–Court Statement of Unreadiness [0 days charged]
On March 6 the People were again not ready (P's Ex. 7). It was explained that the assigned ADA was being transferred to a different department, and the case would have to be reassigned. The People requested a six day adjournment, and acknowledged the Court's warning that they would be charged with all time until they filed a statement of readiness.
Contrary to defendant's contention, the People's situation on March 6 does not render their January 30 written Statement of Readiness illusory. The People's statement on the record of their reason for needing a brief adjournment is sufficient to rebut any challenge to the presumption that the original written Statement of Readiness was truthful and accurate. People v. Sibblies, 22 NY3d 1174, 1180 (2014) (Graffeo, concurring). The People are charged with 0 days.
March 6 to March 12—In–Court Statement of Unreadiness to Written Statement of Readiness [6 days charged]
Notwithstanding the reason for their not being ready on March 6, and without regard to how long an adjournment the People were requesting, the Court adjourned the case to April 29, 2014, and once again instructed the People that they would be charged with all time until they again filed a Statement of Readiness.
On March 12, 2014, the People filed a Statement of Readiness with the court, and served a copy on defense counsel by certified mail. The document is dated March 11, but the court's stamp indicates it was filed on March 12, and the People concede as much. The People are charged with 6 days.
March 12, 2014 to April 24, 2014—Statement of Readiness to Defendant's 30.30 Motion [0 days charged]
The last record statement of the People's trial readiness remains their written March 12 Statement of Readiness, which is presumed to be truthful and accurate and which, indeed, is not here challenged by the defendant. See People v. Carter, 91 N.Y.2d 795, 799 (1988) ; People v. Miller, 113 AD3d 885, 887 (3d Dept 2014). Before the arrival of the next calendar date of April 29, 2014, the defendant filed the present speedy trial motion on April 24, 2014. The filing of this motion tolls the speedy trial clock. CPL § 30.30(4)(a).
CONCLUSION
The People are charged with 93 days in total. Accordingly, defendant's motion is GRANTED.
This constitutes the Decision and Order of the Court.