Opinion
2017-1067 N CR
12-13-2018
The PEOPLE of the State of New York, Respondent, v. Margarita MATOS, Appellant.
Rothenberg, Rubenstein, Berliner & Shinrod, LLC (Michael E. Soffer of counsel), for appellant. Nassau County District Attorney (Sarah S. Rabinowitz and Jared A. Chester of counsel), for respondent.
Rothenberg, Rubenstein, Berliner & Shinrod, LLC (Michael E. Soffer of counsel), for appellant.
Nassau County District Attorney (Sarah S. Rabinowitz and Jared A. Chester of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
ORDERED that the judgments of conviction are reversed, on the law, the order dated December 19, 2016 is vacated, and defendant's motion to dismiss the accusatory instruments on the ground that her statutory right to a speedy trial had been violated is granted.
On March 7, 2015, defendant was arraigned on accusatory instruments charging her with driving while ability impaired by a drug ( Vehicle and Traffic Law § 1192 [4 ] ), and driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs ( Vehicle and Traffic Law § 1192 [4-a ] ), respectively. By notice of motion returnable in December 2016, defendant moved to, among other things, dismiss the accusatory instruments on the ground that her statutory right to a speedy trial had been violated. The People opposed the motion and defendant replied. By order dated December 19, 2016, the District Court (Norman St. George, J.) denied the motion, finding that only 69 days of delay were chargeable to the People. Following a jury trial, defendant was convicted of both charges.
On appeal, defendant contends that although the District Court properly charged the People with 69 days of delay, it improperly determined that the People should not be charged with the 33 days from April 13, 2016 to May 16, 2016, and the 28 days from July 5, 2016 to August 2, 2016.
The People were required to announce their readiness for trial within 90 days of the commencement of the action (see CPL 30.30 [1 ] [b]; Vehicle and Traffic Law § 1193 [1 ] [b]; see also People v. Lomax , 50 NY2d 351, 356 [1980] ). Once a defendant has shown the existence of a delay greater than 90 days, the burden of showing that certain periods of time should be excluded falls on the People (see People v. Brown , 28 NY3d 392, 403 [2016] ; People v. Luperon , 85 NY2d 71, 81 [1995] ; People v. Berkowitz , 50 NY2d 333, 349 [1980] ).
On June 20, 2016, the prosecutor stated that the People were not ready and requested an adjournment until July 5, 2016. The case was adjourned to August 2, 2016, and the court directed the People to file a certificate of readiness if they were ready prior to August 2nd. The People filed an off-calendar statement of readiness on July 5th. In court on August 2nd, the prosecutor stated that the People were not ready and requested an adjournment. In her subsequent statutory speedy trial motion, defendant argued that, since the People were not ready on August 2nd, their July 5th off-calendar statement of readiness was illusory and, therefore, the People should be charged with all of the time from June 20th to August 2nd. The People failed to address this issue in their opposition papers and, in court on August 2nd, the prosecutor did not explain, or state, the reason for the change in the People's readiness status. In its written order on the motion, the District Court charged the People only with the 15 days from June 20th to July 5th.
In People v. Brown (28 NY3d at 406 ), the Court of Appeals stated as follows:
"Although the defendant bears the ultimate burden of demonstrating that a statement is illusory, the People retain the obligation in the postreadiness context to ensure ‘that the record explains the cause of adjournments sufficiently for the court to determine which party should properly be charged with any delay’ ( Stirrup, 91 NY2d at 440 ). Accordingly, if the People announce that they are not ready after they have filed an off-calendar statement of readiness, the People ultimately must explain the reason for their change in readiness status. The People could, but need not, state the reasons on the record at the calendar call. In all events, however, the People must establish a valid reason for their unreadiness in response to a defendant's CPL 30.30 motion. In an appropriate case, the defendant can use those asserted reasons and other relevant circumstances to establish that the People were not in fact ready to proceed when they declared that they were and, thus, the off-calendar statement was illusory and ineffective to stop the speedy trial clock.
If the court determines that the off-calendar statement of readiness was illusory, it should calculate any delay chargeable to the People as required by statute as if the illusory statement of readiness was never made."
In the case at bar, the People had ample opportunity to explain the reason for the change in their readiness status on August 2, 2016, both in court on August 2nd and in response to defendant's speedy trial motion, but they failed to do so (see id. ). In view of the foregoing, the People's July 5th statement of readiness must be deemed to be illusory and treated as if it had never been made (see id. at 406, 408). Thus, the delay chargeable to the People continued beyond the July 5, 2016 off-calendar statement of readiness until August 2, 2016 for a total of 28 days. When these additional 28 days are added to the 69 days already chargeable to the People, more than a total 90 days of delay are chargeable to the People and, therefore, defendant's additional speedy trial arguments need not be addressed. Consequently, defendant's motion to dismiss the accusatory instruments on the ground that defendant's statutory right to a speedy trial had been violated should have been granted.
Accordingly, the judgments of conviction are reversed, the order dated December 19, 2016 is vacated, and defendant's motion to dismiss the accusatory instruments on the ground that her statutory right to a speedy trial had been violated is granted.
MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.