Opinion
47132C/05.
Decided December 8, 2006.
Defendant represented by Elliot Kay, NY, NY.
People represented by A.D.A. Allen Karen, Bronx County District Attorney's Office.
The defendant, Juan Nunez, was charged by way of a felony complaint with assault in the first degree and related offenses. Defendant now moves to dismiss the indictment on the ground that he has been denied his right to a speedy trial pursuant to CPL 30.30.
CPL 30.30(1)(a) requires the dismissal of an accusatory instrument when the People are not ready for trial within six months of the commencement of the criminal action, in this case 181 days.
Based on the court papers and the motion papers the Court finds as follows:
On September 11, 2005, defendant was arraigned on the felony complaint and the matter was adjourned to October 18, 2005, pending grand jury action. As is now conceded by the People, this period is chargeable delay ( 37 days). See People v. Stiles, 70 NY2d 765 (1987).
On October 18, 2005, defendant was arraigned upon the indictment, the People stated that they were ready to proceed and the matter was adjourned to November 15, 2005. Counsel does not now challenge the excludability of this adjournment. This period is excludable.
On November 15, 2005, counsel indicated that he would waive motions. The People were not ready to proceed and requested that the matter be adjourned two weeks. The case was adjourned to January 30, 2006, for trial. The People now argue that this entire period is excludable because despite the fact that counsel waived motions counsel had filed two bills of particulars, dated October 27, 2005, and November 17, 2005. This period is excludabe as the time attributable to motion practice, which includes requests for bill of particulars. CPL 30.30(4)(a).
Appended to the People's response in the instant motion are copies of the two bills of particulars, as well as the People response to both bills of particulars.
On January 30, 2006, the People were not ready to proceed as the assigned assistant was on trial on another matter. The People requested that the matter be adjourned for two weeks; the case was adjourned to March 6, 2006. In this post-readiness posture, the People are charged until the date requested. People v. Cajigas, 224 AD2d 370 (1st Dept.), app. dismissed, 88 NY2d 845 (1996); People ex rel. Sykes v.Mitchell, 184 AD2d 466 (1st Dept. 1992). As is now conceded by the People, they are charged with this delay ( 14 days).
On March 6, 2006, the People were not ready to proceed. The matter was adjourned to April 7, 2006, for hearing and trial. The Court's notations indicate that the People requested a four week adjournment, and defendant's motion indicates likewise. However, the People now assert in their motion papers, without any support of any kind, that they requested a ten day adjournment and now concede that ten days are chargeable to them. The minutes of this adjournment have not yet been provided to the Court. At the least the People are charged with 10 days. People v. Cajigas, supra; People ex rel. Sykes v. Mitchell, supra. The Court holds in abeyance its decision on the remaining 18 days pending receipt from the People of the minutes from this adjournment.
On April 7, 2006, the People were again not ready and the case was adjourned to May 16, 2006, for hearing and trial. The People do not provide the minutes from this adjournment but now contend, again without any support, that they requested that the matter be adjourned to April 17, 2006, and concede that they are charged with this ten day adjournment. In contrast, the Court's notations, and counsel's motion both indicate that the People had in fact requested that the matter be adjourned to May 2, 2006. At the least the People are charged 10 days. People v. Cajigas, supra; People ex rel. Sykes v. Mitchell, supra. The Court holds in abeyance its decision on the remaining 15 days pending receipt from the People of the minutes from this adjournment.
On May 16, 2006, the People were not ready and requested a "date after June 5". The matter was adjourned to June 13, 2006. As is now conceded by the People they are charged with this entire adjournment ( 28 days).
On June 13, 2006, the People were not ready to proceed and requested that the case be adjourned to June 19, 2006. The case was adjourned to July 25, 2006, for hearing and trial with the People being instructed by the Court that they would be charged until they filed a certificate of readiness. The People do not now claim that they filed a certificate of readiness, or even recognize that the Court so instructed them to do so, but merely rely on the fact that they requested a shorter adjournment than was granted and thus now argue that they should only be charged until the date requested. Contrary to the People's assertions, the People's requested adjourn date was explicitly rejected by the Court. Although the filing and serving of a certificate of readiness could otherwise relieve the People of exposure to chargeable delay none was forthcoming. As such the People are charged with this entire adjournment ( 42 days).
Corroborative of the Court's doubt regarding the People's ability to be ready in the time requested is the fact that the People were not ready to proceed on the next adjourn date.
Once again on July 25, 2006, the People were not ready to proceed, and the Court directed the People to file a certificate of readiness. The case was adjourned to August 21, 2006, for hearing and trial. The People now claim that this entire adjournment is excludable since defense counsel did not appear, but rather an associate of counsel appeared. According to the People, the associate informed the Court that defense counsel would return from vacation the following week. Although the People now seem unaware of their then state of readiness, defense counsel now acknowledges that the People filed a certificate of readiness on August 16, 2005. No minutes were provided from this adjournment. Contrary to the People's assertions, the exclusion provided by CPL 30.30(4)(b), (f) which has been applied to those periods where defendant is held to be without counsel, is inapplicable to the facts herein. Defendant was not without counsel, nor did counsel fail to appear. Rather, an associate of counsel stood up on the case. In People v. Liotta, 79 NY2d 841 (1992), the People were charged with an adjournment despite the fact that counsel failed to appear, the Court holding that a consent to an adjournment can not be implied by counsel's absence. In that case the defense attorney did not stand up on the case as he was on vacation, but rather ". . . an associate of the defense counsel told the court that the lead defense attorney. . . was out of town on vacation and that [i]f, indeed, it does go to trial, it will be [counsel].'." People v. Liotta, 176 AD2d 110, 111 (1991). The instant case is indistinguishable from the facts in Liotta, supra. The People's rendition of facts, even if accepted as true in the absence of any minutes of the adjournment to corroborate their contention, would not support a finding that the adjournment was excludable. As such, the People are charged until the date that they filed a certificate of readiness, viz August 16, 2006 ( 22 days).
On August 21, 2006, the People announced that they were ready to proceed. The case was adjourned to September 5, 2006 at which time defendant filed the instant speedy trial motion.
In sum the People are clearly charged with 163 days, with 33 days held in abeyance pending receipt of the minutes from the People of the adjournments as indicated. Accordingly, defendant's motion to dismiss is held in abeyance. .
This constitutes the decision and order of the Court.