Opinion
990/2014
09-23-2015
The People of the State of New York, v. Teofilo Monegro, Defendant.
For the People: Diana Lewis Assistant District Attorney Office of the Bronx County District Attorney For Defendant: Luis Diaz, Esq.
For the People:
Diana Lewis
Assistant District Attorney
Office of the Bronx County District Attorney
For Defendant:
Luis Diaz, Esq.
April A. Newbauer, J.
Defendant Teofilo Monegro was charged under indictment 990/2014 with Criminal Sale of a Controlled Substance in the Third Degree (PL§220.39(1)) and related charges. The defendant moved for dismissal of the indictment for violation of his speedy trial rights (CPL § § 30.30 [1][a]; 210.20 [1][g]). After reviewing the court file, a hearing was held as to whether the statement of readiness filed on April 1, 2015 was illusory given the People's failure to be ready on the next calendar date, April 29, 2015. For the reasons stated below, the statement of readiness is deemed to be illusory under People v. Sibblies, 22 NY3d 1174 (2014). The People have exceeded their time and the defendant's motion to dismiss the indictment is granted.
Facts
Defendant Monegro was arrested on January 14, 2014 and arraigned on the felony complaint on January 15, 2015. On January 29, 2015, the People announced that there was no grand jury action. The defendant was eventually arraigned on the indictment on April 30, 2014. Both sides agree that pre-indictment, 105 days are chargeable to the People. On April 30, 2014, the People stated "ready" and the case was adjourned to June 11, 2014 in Part 75 for a conference and possible disposition. Both sides agree that no time is charged to the People for that time period. On June 11, 2014, however, there was no disposition of the case. The Court set a motion schedule and the case was adjourned to July 23, 2014 for a decision on the defendant's omnibus motion. Both sides agree that no time is chargeable for the period of time between June 11, 2014 and July 23, 2014. The parties agree that the time period between July 23, 2014 and September 9, 2014 is also excludable as a second motion schedule was set down because the defense had not filed any papers. No time is chargeable for this period for motion practice. CPL § 30.30[4][a]. On September 9, 2014, the Court issued its decision and the case was set down for hearing and trial for October 29, 2014. There is no time charged for this time period either, as the People have a reasonable time after the Court renders its decision on the suppression motions to prepare for trial. People v. David, 253 AD2d 642, 644 (1st Dept.1998).
05 days charged
After this six week period, there ensued a series of five appearances where the People stated "not ready" and requested a week at a time to become ready. On October 29, December 10 and January 14 the People stated "not ready" and requested one week. The ADA was on trial the first date, "answering ready" on another case on the second date and on the last date, the People indicated their witness was not notified, without further elaborating. On February 25, 2015, the People stated "not ready" due to a scheduling conflict that was left vague, and requested March 3, 2015. The stop-and-go' nature of the People's requests for time during these months unnecessarily burdened the court's calendar, and because of it additional time had to be added due to the defense counsel's schedule or court docket limits. However, because the People's requests were all immediately post-motion practice and before they had stated ready, the People will be charged only the time they actually requested. See, People v. Cortes, 80 NY2d 201 (1992).
7 days charged
On March 17, 2015, the People once again stated "not ready" and requested a week because the assigned Assistant had just finished a trial and needed a week to prepare. Taking into account the previous four adjournments, the court advised the People that unless they could actually be ready in a week's time, the case would be scheduled for a later date and they would be directed to file a statement of readiness. The matter was adjourned to April 29, 2015, and the People were directed to file the statement when they became ready. The court advised the defense counsel that he could contact the clerk to advance the case if he received a statement of readiness. On April 1, 2015, the assigned Assistant served and filed a statement of readiness. The defendant made no application to advance the case. The People contend that they should be charged the fifteen period of time until the Assistant filed the statement of readiness.
On April 29, 2015, the People stated "not ready" and requested May 5, 2015 without explanation. In their opposition papers, the assigned Assistant stated that their witness was not notified for April 29, 2015. At the hearing on this motion, the ADA stated on the record that she could not remember why her witnesses were not notified. The case was adjourned until June 2, 2015.
6 days charged
At the hearing, the ADA also clarified that it was the District Attorney's office which had not notified the NYPD command to have the officer appear, and not a failure on the part of the NYPD.
On June 2, 2015, nearly eighteen months after the defendant's arrest, the People served discovery and announced their readiness for trial. Defense counsel was engaged in a matter in the Southern District of New York. The case was adjourned until June 18, 2015, when this motion was filed. Both parties agree that no time is charged to the People for this time period.
After being directed to serve discovery on October 1, 2014, the People called the defense counsel on March 31, 2015 and left a message about a discovery packet. The defense counsel did not return the call, and the packet was served in court on June 2, 2015.
Conclusions of law
Under Criminal Procedure Law section 30.30(l)(a) the People have six months from the filing of an accusatory instrument in which a felony is charged to be ready for trial, exclusive of any period of time that is properly chargeable to the defense. See, CPL §§1.20 (l),(17); CPL 100.05; People v. Stiles, 70 NY2d 765 (1987); People v. Sinistaj, 67 NY2d 236 (1986); People v. Anderson, 66 NY2d 529(1985); People v. Worley, 66 NY2d 523 (1985); People v. Kendzia, 64 NY2d 331 (1985). Trial readiness means more than an empty declaration that the People are ready to try their case. People v. England, 84 NY2d 1 (1994).
In People v. Sibblies, 22 NY3d 1174 (2014), the Court of Appeals found that a prosecutor's need to obtain medical records after stating ready cast enough doubt on the prior statement of readiness to render it illusory. As in Sibblies, the People here filed a statement of readiness off calendar and on the subsequent date were not ready. On the initial record there was no explanation. In their motion papers, the People merely stated that "witnesses were not notified" without stating why. At oral argument of the motion, the People acknowledged they did not know and did not remember the reason why they did not notify their own witnesses. This litany is the functional equivalent of having no reason at all. In fact, the People answered the record in the identical way earlier in the litigation when answering not ready and making a steady drumbeat of requests for a week at a time.
Following the unusual split opinion in People v. Sibblies,the First Department cautioned that the Court of Appeal's ruling should not be held to extend beyond the narrower reasoning announced in the three judge concurrence opinion by Judge Graffeo, citing Marks v. United States, 430 US 188 (1977). (See, People v. Brown, 126 AD3d 516 (1st Dept 2015)). As the Appellate Division noted, Judge Lippman's separate three judge concurring opinion in Sibblies would require prosecutors to demonstrate an "exceptional fact or circumstance" to justify a later failure to state ready. The court in Brown rejected that approach and did not apply Judge Lippman's test. Instead, reviewing the particular circumstances of that case, the court found adequate explanation for the People's later failure to be ready without casting aside the importance of courts determining the People's actual "readiness on the ground." See, People v. Sibblies, 22 NY3d at 1178. The Appellate Division found the record in Brown supported an inference that the People were ready to proceed with a minimal prima facie case when they filed their initial statement of readiness and later sought to amplify their case. The court noted that the trial court explicitly found it was not a case where the People "filed their certificate even though the witnesses were not ready." Brown, 126 AD3d at 518.Here, however, the inference is exactly the opposite. As in both Sibblies and Brown, the People merely stated on the record that they were not ready. After this motion was filed, the ADA admitted the People were not ready on April 29, 2015 because they did not notify witnesses and therefore had no witnesses. Further, the People made no representation that they met with even a single witness or ascertained any witness availability before filing the statement of readiness. Since the People cannot say why they failed to notify their witness on April 29, 2015, they cannot be credited with having made sure that they had a witness available to testify on the earlier date. The People cannot have gone forward with a prima facie case at trial without a single witness. The record here supports the defendant's claim that the presumption of readiness is overcome and that their statement of readiness on April 1, 2015 was indeed illusory.
A number of commentators have written about the decision and the degree to which it establishes any precedent. See, e.g., B. Kamins, Court of Appeals Revisits Speedy Trial Rule, NYLJ August 8, 2014.
When faced with a CPL §30.30 motion, the court must evaluate the People's good faith based on the record they make. See, People v. Gough, 44 Misc 3d 431 (Crim Ct Qns Co 2014). On the critical date of April 29, 2015 following the filing of the statement of readiness, the prosecution offered only that they did not notify their witnesses. That record leaves open the possibility that the lack of notification to witnesses was intentional. Without ascribing any bad motives, it must still be construed against the People if it was due to simple nonfeasance, or the purpose of the statute will be abrogated. After filing a statement of readiness, a prosecutor who then neglects to have a case ready for no cognizable reason, who has neither preserved notes or the record to document diligent preparation must be charged despite filing an earlier statement of readiness in order to give any meaning to the statutory time limits.
In this case, it took almost eighteen months to bring to readiness a narcotics case which no one suggested had unusual features. Not all the delay was attributable to the People. The defense counsel failed to adhere to the original motion schedule. On several dates, the defense counsel asked for a later date than that requested by the ADA. The defendant?who was at liberty?did not avail himself of the opportunity to advance the case when the statement of readiness was served and filed. Yet while the defense bears some responsibility for sitting on the defendant's rights, the major issue remains the People's failure to view the filing of a statement of readiness in a serious light. Having filed the statement, they did not offer a coherent explanation of why they were not ready just a few weeks later. The People may have brought about this situation by taking so much time pre-indictment that when faced with chargeable time for what may have been a law office lapse, they exhausted their limit altogether. After numerous successive requests for time, their apparent lack of concern on the ultimate date after they announced readiness and their inability to document the reason for their inaction is practice too slack to countenance. The People will be charged 43 days from March 17, 2015 to April 29, 2015, and they have exceeded their statutory time of 181 days. Defendant's motion to dismiss the indictment pursuant to CPL §30.30[1][a] is granted.
This opinion constitutes the decision and order of the Court.
E N T E R
Dated: Bronx, New York
September 23, 2015
__________________________________
April A. Newbauer
Acting Supreme Court Justice