Opinion
No. 2012NY043665.
10-08-2014
The PEOPLE of the State of New York v. Norman MOORE, Defendant.
Opinion
Defendant, charged with Driving While Intoxicated, in violation of Vehicle and Traffic Law § 1192(2) and (3), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, in violation of Vehicle and Traffic Law § 511(1)(a), Operating a Motor Vehicle While Impaired, in violation of Vehicle and Traffic Law § 1192(1), and Unlicensed Driving, in violation of Vehicle and Traffic Law § 509(1), moves for an order dismissing the accusatory instrument pursuant to CPL § 30.30.
The defendant filed a prior motion pursuant to CPL § 30.30 on December 12, 2012. Judge Quinones, in a decision dated February 27, 2013, found that the People had 90 chargeable days within which to communicate their readiness for trial in satisfaction of their speedy trial obligation under CPL 30.30(1)(b), and that 58 days were chargeable to the People as of February 27, 2013. Therefore, the Court will now address all adjournment periods subsequent to February 27, 2013.
The Court has reviewed the entries and documents in the court file, the parties' motion papers, and the relevant statutes and case law. For the reasons discussed below, the Court finds that 85 days are chargeable to the People. Accordingly, defendant's motion to dismiss is DENIED.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, the defendant was observed operating a motor vehicle in an intoxicated condition in that he had bloodshot, watery eyes, slurred speech, a flushed face, the odor of alcohol on his breath, and was unsteady on his feet. A test determined the defendant's blood alcohol content to be 0.14. A computer check of the Department of Motor Vehicles revealed that his license had been suspended for the failure to answer a New York summons.
B. Legal Proceedings
Defendant was arraigned on June 3, 2012, on an accusatory instrument charging him with Driving While Intoxicated, in violation of Vehicle and Traffic Law § 1192(2) and (3), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, in violation of Vehicle and Traffic Law § 511(1)(a), Operating a Motor Vehicle While Impaired, in violation of Vehicle and Traffic Law § 1192(1), and Unlicensed Driving, in violation of Vehicle and Traffic Law § 509(1). The defendant's prior motion to dismiss pursuant to CPL § 30.30 was denied by Judge Joanne Quinones in a decision dated December 12, 2012. Judge Quinones found that 58 days were chargeable to the People as of February 27, 2013.
Subsequent calendar appearances took place on April 8, 2013, May13, 2013, July 8, 2013, September 11, 2013, October 28, 2013, November 25, 2013, January 28, 2014, February 26, 2014, March 24, 2014, April 28, 2014, May 19, 2014, and July 8, 2014, on which date the defense filed the instant motion. The case was then adjourned to August 5, 2014 for the People's response and the decision of the Court. The People responded to the motion on August 5, and the matter has been sub judice since then.
II. DISCUSSION
Defendant is charged with”at least one ... misdemeanor punishable by a sentence of imprisonment of more than three months.” CPL § 30.30(1)(b). Thus, his motion to dismiss must be granted if the People were not ready for trial within 90 chargeable days of the commencement of the action. Id.
Because there was at least one calendar call where the People answered “not ready” after previously asserting their readiness, this case calls upon the Court to apply the Court of Appeals' recent decision in People v. Sibblies, 22 NY3d 1174 (2014), which dismissed an information on speedy trial grounds. This Court has previously held that the proper approach to follow is Judge Graffeo's concurrence in Sibblies. See People v. McLeod, 44 Misc.3d 505 (Crim Ct N.Y. County 2014) (Statsinger, J.) Under McLeod, when the People answer”not ready,” after a statement of readiness, that alone does not render the prior statement illusory. Rather, the earlier statement of readiness will only be deemed illusory if the record contains proof that the People were not actually ready when they said they were. Id. For the adjournments that defendant contests, no such proof is apparent on the record here.
A. The Speedy Trial Calculations
1. February 27, 2013, to April 8, 2013: 0 Days Chargeable
On February 27, 2013, the Court rendered a decision denying the defendant's motions to dismiss pursuant to CPL § 30.30, and CPL § 170.40. The case was adjourned to April 8 for trial. This entire period is excludable under People v. Green, 90 A.D.2d 705, 706 (1st Dept 1982), under which a “reasonable period” after the decision on pretrial motions is excludable, to give the People time to prepare. See also People v. Forbes, 7 AD3d 473, 474 (1st Dept 2004) ; People v. Dean, 45 N.Y.2d 651, 657 (1978) ; People v. Douglas, 156 A.D.2d 173 (1st Dept 1989). Accordingly, 0 days are chargeable for this period. The Court would note that a Certificate of Readiness (“COR”) was filed on March 4, 2013.
2. April 8, 2013, to May 13, 2013: 11 Days Chargeable
On April 8, 2013, the People answered”not ready” for trial and requested that the case be adjourned to April 19. The Court adjourned the case to May 13. Accordingly, 11 days-the adjournment the People requested-are chargeable for this period. The People concede these 11 days.
Here, despite the People's lack of readiness, the record contains no proof that the People were not, in fact, ready when they filed the March 4, 2013, COR. McLeod, 44 Misc.3d at 508. Accordingly, there is no basis for finding that the March 4, 2013, COR was illusory.
3. May 13, 2013, to July 8, 2013: 0 Days Chargeable
On May 13, 2013, the People answered”ready” for trial, as did the defense, but no trial parts were available. The Court adjourned the case to July 8 for trial. For this period, 0 days are chargeable to the People. People v. Grainger, 164 Misc.2d 294, 295, 624 N.Y.S.2d 740, 742 (Crim Ct N.Y. County 1995) (adjournment occasioned by”no parts” is excludable).
4. July 8, 2013, to September 11, 2013: 0 Days Chargeable
On July 8, 2013, the People answered “ready” for trial, but no parts were available. The defense filed a motion to dismiss in the interest of justice, and the case was adjourned to September 11 for response and decision. For this period, 0 days are chargeable to the People. People v. Grainger, 164 Misc.2d 294, 295, 624 N.Y.S.2d 740, 742 (Crim Ct N.Y. County 1995) (adjournment occasioned by “no parts” is excludable). The period is also excludable pursuant to CPL § 30.30(4)(a) (“reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions” is excludable).
5. September 11, 2013, to October 28, 2013: 0 Days Chargeable
On September 11, 2013, the case was adjourned to October 28 for the decision of the Court. For this period, 0 days are chargeable to the People. CPL § 30.30(4)(a) (“reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions” is excludable).
6. October 28, 2013, to November 25, 2013: 0 Days Chargeable
On October 28, 2013, the Court denied the motion to dismiss, and ordered a Huntley/Johnson/Dunaway hearing. The case was adjourned to November 25 for hearing and trial. This entire period is excludable under People v. Green, 90 A.D.2d 705, 706 (1st Dept 1982), under which a”reasonable period” after the decision on pretrial motions is excludable, to give the People time to prepare. See also People v. Forbes, 7 AD3d 473, 474 (1st Dept 2004) ; People v. Dean, 45 N.Y.2d 651, 657 (1978). Accordingly, 0 days are chargeable for this period.
7. November 25, 2013, to January 28, 2014: 7 Days Chargeable
On November 25, 2013, the People answered”not ready” for trial, and requested that the case be adjourned to December 2. The Court adjourned the case to January 28, 2014. Accordingly, 7 days-the adjournment the People requested-are chargeable for this period.
8. January 28, 2014, to February 26, 2014: 3 Days Chargeable
On January 28, 2014, the People answered”not ready” for trial because the assigned assistant district attorney was on trial, and requested that the case be adjourned to January 31. The Court adjourned the case to February 26. Accordingly, 3 days-the adjournment the People requested-are chargeable for this period.
9. February 26, 2014, to March 24, 2014: 5 Days Chargeable
On February 26, 2014, the People answered”not ready” for trial because the assigned assistant district attorney was on trial, and requested that the case be adjourned to March 3. The Court adjourned the case to March 24. Accordingly, 5 days-the adjournment the People requested-are chargeable for this period.
10. March 24, 2014, to April 28, 2014: 1 Day Chargeable
On March 24, 2014, the People answered”not ready” for trial because the assigned assistant district attorney was ill, and requested that the case be adjourned to March 25. The Court adjourned the case to April 28. Accordingly, 1 day-the adjournment the People requested-is chargeable for this period.
11. April 28, 2014, to May 19, 2014: 0 Days Chargeable
On April 28, 2014, the People answered”ready” for trial, as did the defense, but no trial parts were available. The Court adjourned the case to May 19 for trial. For this period, 0 days are chargeable to the People. People v. Grainger, 164 Misc.2d 294, 295, 624 N.Y.S.2d 740, 742 (Crim Ct N.Y. County 1995) (adjournment occasioned by”no parts” is excludable).
12. May 19, 2014, to July 8, 2014: 0 Days Chargeable
On May 19, 2014, the defendant was unable to appear in court because he had to attend a medical training that could not be postponed. The defense requested an adjournment to a date beyond May 26, 2014 (see letter from defense attorney, James Burrell, II, to Judge Crane of May 15, 2014). A bench warrant was stayed, and the case was adjourned to July 8. For this period, 0 days are chargeable to the People. CPL § 30.30(4)(b) (“period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel” is excludable). The period is also excludable because when the court stays execution of a bench warrant, at defense request, it is a period accruing to the defendant's benefit. See People v. Medina, 198 A.D.2d 146 (1st Dept.1993) ; People v. Toro, 151 A.D.2d 142 (1st Dept.1989).
13. July 8, 2014, to August 5, 2014: 0 Days Chargeable
On July 8, 2014, the defense filed the instant motion. The Court adjourned the case to August 5 for response and decision. For this period, 0 days are chargeable to the People. CPL § 30.30(4)(a) (“reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions” is excludable).
14. August 5, 2014, to October 8, 2014: 0 Days Chargeable
On August 5, 2014, the case was adjourned to October 8, 2014 for the decision of the Court. For this period, 0 days are chargeable to the People. CPL § 30.30(4)(a) (“reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions” is excludable).
B. Conclusion
As detailed above, 85 days (58 + 11 + 7 + 3 + 5 + 1 = 85) are chargeable to the People. Defendant's motion to dismiss pursuant to CPL § 30.30 is accordingly denied.
IV. CONCLUSION
Since 85 days of speedy trial time are chargeable to the People, defendant's motion to dismiss is denied.
This constitutes the Decision and Order of the Court.