Opinion
0710/2017
02-20-2019
The PEOPLE of the State of New York, Plaintiff, v. Malcolm NOWELL, Defendant.
Attorneys: Assistant District Attorney Nicholas Penfold Defense Counsel: Joseph Bondy
Attorneys: Assistant District Attorney Nicholas Penfold
Defense Counsel: Joseph Bondy
DECISION AND ORDER
Ann Scherzer, J.
This indictment charges defendant with Attempted Murder in the Second Degree pursuant to PL § 110/125.25(1) and co-defendant Alexis Ceesay with Assault in the First Degree pursuant to PL § 120.10(1) and related charges. Defendant moves to dismiss the charges against him on the ground that his statutory rights to a speedy trial have been violated. His motion compels the Court to consider the following question: how much delay attributed to either consent by or illness of co-defendant but not defendant himself is "reasonable," and thus excludable pursuant to CPL§ 30.30(4)(d). Based on the following detailed review of the adjournments that took place over a nearly two-year period, the court finds that the delay caused by co-defendant Ceesay in her effort to obtain a favorable plea offer, while defendant repeatedly proclaimed his desire for an expeditious trial, far exceeded any plausible definition of reasonableness. The Court finds 244 days chargeable to the People, and therefore defendant's motion is granted.
Motion to Dismiss: CPL § 30.30 Right to Speedy Trial
CPL § 30.30 mandates that the People be ready for trial within six months, plus any periods of excludable time, from the date the criminal proceeding began. In this case that totals 181 days. Defendant was arrested on February 19, 2017 and this motion was filed on October 29, 2018. In the more than twenty months that transpired between those two events, the People never answered ready for trial in open court or by way of a Certificate of Readiness (COR). Thus, the entirety of the court's analysis relates to a pre-readiness posture.
The People concede 73 days of chargeable time and argue that the majority of adjournments at issue are excludable pursuant to CPL § 30.30(4)(d). That section provides that a reasonable period of delay occasioned by a defendant binds those co-defendants with whom he is joined for trial. The rule applying an exclusion as to one defendant being jointly tried with another defendant reflects a strong public policy favoring joinder. However the People should not be able to rely upon this section to create unreasonable delay for a co-defendant who is demanding a speedy trial. The First Department has found under certain circumstances that delays caused by a co-defendant were "not so lengthy or unreasonable" as to remove them from the exclusion provided by CPL § 30.30(4)(d)." People v. Vidal , 180 AD2d 447, 449 (1st Dept. 1992) (citing People v. Robles , 139 AD2d 781, 782.) This necessarily implies that the converse is true; a particular delay may be found to be so lengthy or unreasonable as to remove it from the exclusion.
In this instance, multiple consent adjournments were sought by co-defendant as it benefitted her in her quest for a more favorable disposition. But this defendant repeatedly objected to the delay and demanded an expeditious trial. Although defendant did not file a severance motion, a remedy that ought to have been available to him, the Court must still consider a standard of reasonableness when evaluating the nature and length of any period of delay premised on a co-defendant's excludable adjournment. See People v. Chrysler, 152 AD3d 825 (3rd Dept. 2017) ; see also People v. Vidal, supra.
With that context, the Court resolves the time periods as follows:
February 19, 2017 — February 23, 2017: 4 days charged
A felony complaint was filed in which defendant was the sole individual on the charging instrument. Defendant was arraigned in criminal court, and the case was adjourned for grand jury action. This time period is includable, and conceded by the People.
February 23, 2017 — May 17, 2017: 20 days charged (total 24)
On February 23, 2017, there had been no grand jury action and the case was adjourned to April 17, 2017. On February 27, 2017, an indictment was filed jointly charging defendant with co-defendants Alexis Ceesay and Tijon Carswell. Defendant's case was calendared for March 29, 2017 for arraignment on that indictment in New York County Supreme Court Part 81. This time period is includable, and conceded by the People.
On March 15, 2017, co-defendants Ceesay and Carswell were arraigned on the indictment, a motion schedule was set and the case adjourned for decision on those motions. For reasons irrelevant to this motion, defendant was ultimately not produced in court or arraigned until April 5, 2017. A motion schedule set with defense motions due by April 26, 2017 and the People's response on May 17, 2017.
Although defendant's non-production prior to arraignment may have been chargeable to the People, the time starting March 15 is otherwise excludable pursuant to CPL § 30.30(4)(d) as his co-defendants were already in motion practice. The latter portion of this time period is equally excludable pursuant to CPL § 30.30(4)(a), and that portion is conceded by defendant.
May 17, 2017 — October 4, 2017: 0 days charged (total 24)
Defendant concedes that this entire time period, during which there were three court appearances, is excludable. October 4, 2017 was the first date that the case was calendered for trial.
October 4, 2017 — December 19, 2017: 41 days charged (total 65)
Co-defendant Ceesay filed a motion for severance, precluding the possibility of a trial moving forward. The People were directed to file a response by October 18 with the Court to issue its decision on November 30, 2017. The People failed to file their response on the date due. On November 30, 2017, the People moved for an extension to December 4th to file their response citing that the People had been busy on an unrelated case and out sick. The court granted the People's request for that extention and adjourned the case to December 19 for its decision. The People filed their response on December 8, 2017.
The People contend that the should only be charged the eight days from November 30, the date on which they requested an extension, to December 8, 2017, the date they ultimately filed. But that argument totally ignores the fact that December 4 was the extention granted to the People after had they missed their initial due date of October 18. The court granted an additional four days so as not to preclude the People from opposing the motion, but did not address the speedy trial ramifications of the extension. While it was "reasonable" to exclude the original adjournment for a motion submitted by co-defendant pursuant to CPL § 30.30(4)(d), it is not, in this court's view, reasonable to exclude from a calculation of this defendant's speedy trial time the additional delay caused by the People's dilatory motion practice. Accordingly, as to this defendant the People are charged from October 18, the date the People's response was due, until the filing of that response on December 8. That includes a total of 33 days for this adjournment period. The remainder of this adjournment is excludable.
On October 4, 2017, co-defendant Carswell entered into a dispositon on the indictment, thus the remaining adjournments only relate to defendant and co-defendant Ceesay.
December 19, 2017 — January 22, 2018: 0 days charged (total 65)
The court issued its decision denying severance on co-defendant Ceesay's motion. The case was adjourned for hearings and trial as to both defendants. This time period following decision on defendant's motion is excluded. People v. Green, 90 AD2d 705 (1982) ; CPL § 30.30(4)(b).
January 22, 2018 — February 27, 2018: 0 days charged (total 65)
Defendant's case was called individually without the presence of co-defendant or co-counsel. The People were not ready for trial and the case was adjourned to February 27, 2018.
Later that same day, co-defendant Ceesay's case was also adjourned for trial but on consent. Although the record does not expand upon the basis for that consent, the People represent that he and counsel for Ms. Ceesay had set up a proffer session with Ms. Ceesay as an initial step towards a potential resolution to her case. Recognizing the complexity of the underlying facts of the indictment, it was not unreasonable for co-counsel to have consented to additional time to pursue a disposition. Moreover, an adjournment for plea negotiations by one defendant can, if reasonable, be excluded as to co-defendants pursuant to CPL § 30.30(4)(d). People v. Delvalle, 265 AD2d 174 (1st Dept. 1999) ; People v. Rodriguez, 184 AD2d 317 (1st Dept. 1992). Thus despite the fact that the People were not ready for trial and the adjournment was at the behest of co-defendant alone, the court finds this early request for a short adjournment to have been reasonable and excludable as to both defendants.
February 27, 2018 — March 8, 2018: 0 days charged (total 65)
Defendant's case was called separately from co-defendant Ceesay's. The People were not ready for trial. At the time of defendant's appearance, the People consented to a drastic reduction in defendant's bail pursuant to the discovery of "a variety of Brady matters." After a conference at the bench, the case was adjourned to March 8, 2018 "for control or update" on consent of counsel. See Transcript Dated February 27, 2018. At a separate calendar call, counsel for co-defendant Ceesay consented to an adjournment until March 22, 2018, to continue working on a disposition. This adjourment was consented to by defendant and is therefore excludable.
March 8, 2017-March 22, 2018: 0 days charged (total 65)
Defendant's case was conferenced with the court and adjourned to join co-defendant, whose case had been adjourned for adjourned for "control" to March 22. There was no specific directive that March 22 would be a trial date, nor was there consent by defendant to additional delay. In fact, during the course of this pre-readiness court appearance, counsel for defendant stated "we continue to be ready for trial at all times." Nevertheless, since defendant had consented to the adjournment to March 8 with the understanding that there would be no trial on that date, the subsequent adjournment to March 22 is excludable.
March 22, 2018 — May 1, 2018: 0 days charged (total 65)
The assigned ADA and counsel for co-defendant Ceesay requested another adjournment on consent. Counsel for this defendant protested any further delay and expressed his desire to move the case to trial expeditiously. With this context, the court denied the request for a consent adjournment noting that it would not "permit cases against one defendant to simply sit in abeyance while the People pursue a particular agenda with respect to the other defendant." Further the court stated that it did not consider it "fair to hold up the trial for [defendant] just because Ms. Ceesay wants an adjournment." See Transcript dated March 22, 2018.
With respect to co-defendant's case, the People represent that they used this time period to "vet Ms. Ceesay's story by re-interviewing known witnesses, comparing her account to the known video, vetting collateral claims made by Ms. Ceesay against known records available to the People, and a (sic) conducting a preliminary examination of Ms. Ceesay's DOC call records." See People's email submission dated February 6, 2019 . In other words, the basis of Ceesay's consent was to continue her pursuit of a favorable disposition.
Having articulated clearly its position that the People could no longer rely upon co-defendant's requests for an adjournment, the court finds that as of March 22, 2018, the People were on notice that they could no longer rely upon CPL § 30.30(4)(d) to delay proceeding against this defendant. In deference to any potential misunderstanding that may have existed prior to that time, and the People's good-faith reliance on the statutory exemption until that time, this adjournment is excluded pursuant to CPL § 30.30(4)(d).
May 1, 2018 — May 15, 2018: 14 days charged (total 79)
The People were not ready for trial and requested an adjournment to May 15. Significantly, co-defendant Ceesay did not consent to any additional time, indicating that her effort to work out a favorable offer from the People had been exhausted. This time period is chargeable and conceded by the People.
May 15, 2018 — June 25, 2018: 41 days charged (120 total)
The People were not ready for trial despite it being the date they requested, and requested May 29. Given that the People had never yet answered ready for trial, and that they were not ready on the date they requested, the court stated that the People's date request would neither be honored, nor serve to stop the speedy-trial clock. Instead, the Court stated that it would "choose an adjourn date" and that the People could file a COR off calendar if they were ready before that date. The case was adjourned for trial to June 25, 2018. The People did not file a COR during this period and therefore the adjournment is chargeable.
June 25, 2018 — July 9, 2018: 14 days charged (134 total)
The People were not ready for trial and the case was adjourned to July 9. Co-defendant Ceesay consented to this adjournment and the People contend that as a result, the time period should be excluded as to this defendant pursuant to CPL § 30.30(4)(d). Upon review of the People's submission, it seems that despite the case having returned to a trial posture after an unsuccessful proffer by Ceesay, the People had agreed to meet with her again with an eye toward disposing of her case. See People's email submission dated February 6, 2019.
Certainly co-defendant Ceesay was entitled to consent to additional time in the hopes that further proffers would benefit her. However, given the history of the case as described above, it was not reasonable to expect defendant to endure additional excludable adjournments under these circumstances. In light of the court's specific admonitions regarding the People's requirement to bring this defendant's case to trial, and the many consent adjournments that have already been excluded based upon co-defendant's consent, the People's argument is rejected. This time is charged to the People.
July 9, 2018 — July 30, 2018: 21 days charged (155 days total)
Defendant's case was called before that of co-defendant. The People were not ready for trial and the case was adjourned to July 20, 2018. Counsel for defendant informed the court that defendant had lost his job as a result of his arrest in the case and could not seek reinstatement until a trial resolved in his favor, thus reiterating his desire for a speedy trial seeking a result upon which he could proceed.
Later, co-defendant Ceesay consented to an adjournment to the same date. A review of the People's submissions indicates that continued discussions between them and Ceesay were no longer focused exclusively on a resolution of her case, but also in the hopes of strengthening their case against this defendant. See People's email submission dated February 6, 2019. For the reasons stated above in addition to the inherent unreasonableness of delaying defendant's trial in hopes of extracting evidence against him from the co-defendant in exchange for a better offer to her, the People's suggestion that this adjournment be excluded pursuant to CPL § 30.30(4)(d) is rejected and the People are charged with this adjournment.
July 30, 2018 — September 21, 2018: 52 days charged (207 total)
Defendant's case was called before that of co-defendant. The People were not ready for trial and requested an adjournment to August 9, 2018. The case was adjourned accordingly with the court noting that the time would be chargeable to the People. Later it was learned that co-defendant Ceesay was not produced in court due to medical issues. Department of Corrections records provided by the People represent that co-defendant Ceesay was "medically unfit for court." See Exhibit D to People's Response . Co-counsel informed the court that he was not available on August 9 so the case was rescheduled for trial on September 21, 2018. This time period was excluded as to co-defendant Ceesay in her parallel speedy trial motion pursuant to CPL § 30.30(4)(c) which excludes time when the People could not, with due diligence, produce a defendant whose whereabouts are known.
Although defendant's medical absence was not a result of any hospital stay or other medical infirmity that would have warranted such a lengthy adjournment, the adjournment beyond the requested date of August 9th was as a result of co-counsel's unavailability.
The People argue that the exclusion should apply to this defendant as well. The court agrees that the particular day on which co-defendant was unavailable due to illness is excludable, but absent proof that she continued to be ill beyond that day, the court declines to exclude the remainder of this adjournment as to this defendant. As stated above, the People were on notice that this defendant wished to proceed expeditiously to trial, particularly since he had lost his job and would unemployed at a minimum until this case was resolved. Nonetheless, without question, the People were not ready to proceed against either defendant on July 30, not did they file a COR on the date they requested or at any other time during this time period. As such, the People are charged from July 31 through September 21, 2018.
September 21, 2018 — October 25, 2018: 33 days charged (240 days total)
The People were not ready for trial and requested October 4th for trial, but the case was adjourned to October 25, 2018 to accommodate all parties. Once again, co-defendant Ceesay was not produced in court due to medical issues. Department of Corrections records provided by the People represent that co-defendant Ceesay was "medically unfit for court." See Exhibit D to People's Response . Again, there is no evidence that defendant was unfit beyond the single day of September 21. The People did not file a COR on the date they requested, or at any other time during this period. Therefore, the same analysis as the prior adjournment applies and the People are charged with the time from September 22 through October 25, 2018.
October 25, 2018 — October 29, 2018: 4 days charged (244 days total)
The People were not ready for trial on this date and at their request the case was adjourned to October 29. Co-defendant Ceesay was not produced in court once again however the People have not submitted records from the Department of Corrections to clarify the reasons for her non-production. The failure to file any record reflecting a basis to exclude this time, in addition to all the factors described above, renders this entire time period chargeable to the People.
October 29, 2018 — December 10, 2018: 0 days charged (244 days total)
The People were ready for hearings and trial on this date and defendant filed the instant motion. The case was adjourned for the People to respond, and ultimately for the court's decision. This time period is excluded. CPL § 30.30(4)(a).
Defendant has, thus, been denied his right to a speedy trial under CPL § 30.30(1)(a).
Conclusion
Accordingly, defendant's motion to dismiss is GRANTED.
This opinion constitutes the Decision and Order of this court.