Opinion
2014-09-18
The PEOPLE of the State of New York, Plaintiff, v. Aslam MORTOZA, Defendant.
Jorge Guttlein, for Defendant. ADA Meredith D'Angelo, for the People.
Jorge Guttlein, for Defendant. ADA Meredith D'Angelo, for the People.
ELISA S. KOENDERMAN, J.
The defendant, Aslam Mortoza, is charged with Assault in the Third Degree, Penal Law [“PL”] § 120.00(1), Attempted Assault in the Third Degree, PL § 110/120.00(1) and Harassment in the Second Degree, PL § 240.26(1). He moves to dismiss the criminal action against him on the ground that he has been denied his statutory right to a speedy trial ( seeCriminal Procedure Law [“CPL”] § 30.30[1][b] ). He argues that despite the People's off-calendar Notice of Readiness, they in fact were not ready to proceed and that therefore they are chargeable with more than ninety (90) days since his arraignment. Because the Court agrees that the People's statement of readiness was illusory in light of their subsequent requests for adjournments to obtain additional evidence, the defendant's motion to dismiss is granted.
Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within ninety (90) days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three months. Although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day ( see People v. Stiles, 70 N.Y.2d 765, 520 N.Y.S.2d 745, 514 N.E.2d 1368 [1987] ). Whether the People have satisfied their obligation to be ready under CPL § 30.30 is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional periods of post-readiness delay which are attributable to the People and ineligible for any exclusions under the statute ( see People v. Cortes, 80 N.Y.2d 201, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ).
The defendant was arraigned on the misdemeanor complaint on October 10, 2013. The People announced not ready and the matter was adjourned to October 29, 2013 for the People to file and serve the supporting deposition from the complainant necessary to convert the complaint to an information. The People do not dispute that nineteen (19) days are chargeable to them for this adjournment.
On October 29, 2013, the People filed and served a Domestic Incident Report [“DIR”] and moved to add the charge of Attempted Assault in the Third Degree to the accusatory instrument. The Court deemed the complaint an information as to Attempted Assault in the Third Degree and Harassment in the Second Degree. The defendant waived discovery and motions on the converted counts and the Court adjourned the matter to January 13, 2014 for trial on the information and for supporting deposition on the Assault in the Third Degree count .
The court action sheet does not indicate whether the People announced ready on the information. Regardless, even assuming arguendo that the People stated ready, pursuant to the following analysis, their readiness was illusory.
Thereafter, off-calendar on December 18, 2013, the People filed and served a superseding information with a Notice of Readiness for trial. On the January 13, 2014 adjournment date, however, the People announced not ready and requested January 28, 2014 “for the 911....” In their affirmation in opposition to the instant motion, the People concede that they were not ready because they were awaiting receipt of the 911 recording. The Court adjourned the matter to March 6, 2014 for trial. Again, on that date, the People reiterated that they were not ready since they still were awaiting receipt of the 911 recording. They requested March 18, 2014 and the Court adjourned the matter to April 15, 2014 for trial.
The superseding information charges the defendant with Assault in the Third Degree and Harassment in the Second Degree. Once the defendant is arraigned on a superseding information, the court must dismiss any offense contained in the first instrument which is also charged in the second one ( seeCPL § 100.50[1]; see also People v. Thomas, 4 N.Y.3d 143, 147–148, 791 N.Y.S.2d 68, 824 N.E.2d 499 [2005] ). In contrast, any offense contained in the original accusatory instrument which is not charged in the superseding information continues to exist ( see id.; see also Thomas, 4 N.Y.3d at 147–148, 791 N.Y.S.2d 68, 824 N.E.2d 499; People v. Bowman, 84 N.Y.2d 923, 925, 620 N.Y.S.2d 810, 644 N.E.2d 1366 [1994] ). Consequently, the offense of Attempted Assault in the Third Degree, which was added to the misdemeanor complaint at the People's request on October 29, 2013 but is not charged in the superseding information, remains extant.
On April 15, 2014, the People announced not ready because the arresting officer was unavailable and requested April 22, 2014. The Court adjourned the matter to May 29, 2014 for trial. On May 29, 2014, the People announced ready for trial and the defendant filed and served the instant speedy trial motion. The period of delay resulting from a defendant's pretrial motion and the time during which it is under consideration by the Court is excludable ( seeCPL § 30.30[4][a]; see also People v. Worley, 66 N.Y.2d 523, 525, 498 N.Y.S.2d 116, 488 N.E.2d 1228 [1985] ). Moreover, while a defendant's pretrial motion is sub judice, that period of delay is excludable ( see People v. Douglas, 209 A.D.2d 161, 162, 617 N.Y.S.2d 765 [1st Dept.1994] ). Zero (0) days therefore are chargeable to the People from May 29, 2014 to date.
Determination of the defendant's speedy trial motion turns on whether the People's initial statement of readiness was valid. If it was, only delay which is directly attributable to the People is chargeable to them ( seeCPL § 30.30[4][f]; see also People v. Corporan, 221 A.D.2d 168, 633 N.Y.S.2d 33 [1st Dept.1995]; Cortes, 80 N.Y.2d at 209, 590 N.Y.S.2d 9, 604 N.E.2d 71), not delay due to court congestion ( see People v. Chavis, 91 N.Y.2d 500, 502, 673 N.Y.S.2d 29, 695 N.E.2d 1110 [1998] ) or court unavailability ( see People v. Shaw, 44 Misc.3d 79, ––––, ––– N.Y.S.2d ––––, 2014 N.Y. Slip Op. 24222, *1 [App.Term, 1st Dept.2014], citing People v. Tavarez, 147 A.D.2d 355, 356, 537 N.Y.S.2d 517 [1st Dept.1989] ). If, on the other hand, the People's initial statement of readiness was illusory, they are chargeable with all of the time from the defendant's arraignment to the filing of the instant motion.
Readiness for trial “is not an empty declaration that the People are prepared to present their direct case” (People v. England, 84 N.Y.2d 1, 4, 613 N.Y.S.2d 854, 636 N.E.2d 1387 [1994] ). Rather, trial readiness means that the “the People have done all that is required of them to bring the case to a point where it may be tried” ( id.). Thus, to be ready for trial the People must have a valid accusatory instrument, have complied with their obligation to produce the defendant and have complied with all pretrial proceedings ( see People v. Caussade, 162 A.D.2d 4, 8, 560 N.Y.S.2d 648 [2d Dept.1990] ).
The People “must in fact be ready to proceed” when they announce ready for trial ( People v. Chavis, 91 N.Y.2d 500, 505, 673 N.Y.S.2d 29, 695 N.E.2d 1110 [1998] ). A statement of readiness made “at a time when the People are not actually ready is illusory” (England, 84 N.Y.2d at 4, 613 N.Y.S.2d 854, 636 N.E.2d 1387). The People's statement of readiness is presumed to be accurate and truthful unless there is proof that it does not accurately reflect their position ( see People v. Sibblies, 22 N.Y.3d 1174, 1180, 985 N.Y.S.2d 474, 8 N.E.3d 852 [2014] [Graffeo, J., concurring] ).
Accordingly, where the People announce ready for trial upon a valid accusatory instrument, but then, without explanation, request an adjournment to obtain additional evidence for trial, their statement of readiness is illusory ( see id.). A valid accusatory instrument is a jurisdictional prerequisite to trial readiness ( see People v. Hansen, 95 N.Y.2d 227, 230, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000]; People v. Case, 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977], citing People v. Harper, 37 N.Y.2d 96, 99, 371 N.Y.S.2d 467, 332 N.E.2d 336 [1975] ). It is not, however, the equivalent of trial readiness ( see People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 [1985]; see also People v. Cole, 73 N.Y.2d 957, 540 N.Y.S.2d 984, 538 N.E.2d 336 [1989] ). While the People are entitled to declare their readiness on a valid accusatory instrument, they must be prepared to go forward with the evidence in their possession at that time ( see People v. Wright, 50 A.D.3d 429, 430, 855 N.Y.S.2d 475 [1st Dept.2008] ). If they subsequently request an adjournment to obtain additional evidence in order to be ready for trial, their initial statement of readiness is illusory unless the record supports the inference that “the People made an initial strategic decision to proceed, if necessary, with a minimal prima facie case but later determined to present additional evidence' ” (Sibblies, 22 N.Y.3d at 1181, 985 N.Y.S.2d 474, 8 N.E.3d 852 [Graffeo, J., concurring], quoting People v. Bonilla, 94 A.D.3d 633, 942 N.Y.S.2d 509 [1st Dept.2012] ).
Record support for such an inference encompasses more than the People's bare assertion that they once were willing to go forward without the additional evidence but now are not. Indeed, to accept such a transparent excuse for the People's unreadiness would nullify the force and effect of Sibblies, supra. Rather, such support might be an averment that the People just discovered the existence of additional evidence which they wish to obtain to strengthen their case, or that they have lost control of a material witness, requiring that they secure other evidence to be able to go forward .
The sudden unavailability of a material witness or material evidence also may qualify as an exceptional circumstance under CPL § 30.30(4)(g)(I) ( see People v. Miller, 113 A.D.3d 885, 978 N.Y.S.2d 412, n. 1 [3d Dept.2014] [exceptional circumstances under CPL § 30.30[4][g] exist where a witness is ill, is unavailable due to military service deployment, unexpectedly leaves the country or has a last-minute refusal to testify] [internal citations omitted] ). Nevertheless, the People are not required to demonstrate an exceptional circumstance for their previous statement of readiness to be valid, only a sufficient explanation to justify their current position ( see People v. McLeod, 44 Misc.3d 505, 508–509, 988 N.Y.S.2d 436 [Crim.Ct., N.Y. County 2014] [holding that the “narrower” concurrence by J. Graffeo in Sibblies is controlling precedent] ).
In any event, no record support for the inference that the People made an initial strategic decision to go forward without the 911 recording exists here. Indeed, the record yields the exact opposite inference: that the People never intended to proceed to trial without the 911 recording. Significantly, the People first sought to convert the complaint to an information with a DIR rather than a standard supportingdeposition. A DIR is qualitatively different from a supporting deposition. A DIR is an affidavit which the complainant handwrites in her own words at the scene of the domestic incident, before the prosecution begins. It often fails to contain facts pleaded in the misdemeanor complaint. In this case, for example, the DIR contains no allegations of physical injury to support the charge of Assault in the Third Degree. In contrast, the District Attorney's Office drafts a supporting deposition in conjunction with a misdemeanor complaint. The complainant signs it after the complaint has been docketed and the criminal action has commenced. By signing the supporting deposition, the complainant attests that the facts said to be furnished by her in the misdemeanor complaint are true. From the prosecutor's perspective, a supporting deposition is preferable to a DIR because it directly corroborates the facts alleged in the misdemeanor complaint and signifies the complainant's willingness to cooperate, at least at the initial stage of the proceeding. Often when the People are unable to procure a supporting deposition, they will file a DIR instead.
Here, the People's action in filing a DIR in lieu of a supporting deposition suggests that the complainant either is unavailable or uncooperative. That inference is bolstered by the fact that the People subsequently filed a superseding information based upon the first-party observations of the police officer who responded to the domestic incident, which contained a purported excited utterance from the complainant. Yet on the first adjournment date after filing the superseding information with its accompanying Notice of Readiness, the People declared that they were not ready because they needed “the 911.” On the next adjournment date, almost two months later, the People again announced not ready for the same reason. In this case, where it appears that the complainant was never cooperative, the record is clear that the People never intended to go forward without the 911 recording. Therefore they could not have been ready when they said they were. Under the circumstances, their statement of readiness was truly “readiness in the air without readiness on the ground” (Sibblies, 22 N.Y.3d at 1178, 985 N.Y.S.2d 474, 8 N.E.3d 852 [Lippman, J., concurring] ) and was illusory.
Accordingly, since a total of two hundred and thirty one (231) days has accrued to the People since the defendant's arraignment, his motion to dismiss on the ground that he has been deprived of his statutory right to a speedy trial is granted.
This constitutes the decision and order of the Court.