Opinion
2013KN041287
04-08-2015
The People of the State of New York, v. Benjamin Ortiz, Defendant.
Appearances: For the People: District Attorney, Kings County, by ADA Daniel CostelloFor the Defendant:The Legal Aid Society by Robert Heilbrun
Appearances:
For the People: District Attorney, Kings County, by ADA Daniel CostelloFor the Defendant:The Legal Aid Society by Robert Heilbrun
Laura R. Johnson, J.
On May 31, 2013, the defendant was arraigned on a misdemeanor complaint charging him with Criminal Possession of a Controlled Substance in the 7th Degree (Penal law [PL] § 220.03), a class A misdemeanor, and Unlawful Possession of Marijuana, (PL §221.05), a violation. By Notice of Motion filed on December 8, 2014, defendant moves to dismiss the accusatory instrument on the ground that the People have exceeded the statutory speedy trial time (Criminal Procedure Law [CPL] § 30.30[1][b]). The People oppose the defendant's motion. With the Court's permission, the defendant submitted a reply affirmation and the People filed a surreply. For the following reasons, defendant's motion to dismiss is GRANTED.
Defendant has also moved to dismiss his other case, 2013KN051160, on speedy trial grounds, a motion that is separately decided by this Court.
ANALYSIS
CPL § 30.30 requires that, allowing for any time subject to exclusion, the People must be ready to try a defendant accused of a class A misdemeanor within 90 days of the commencement of the action (CPL § 30.30[1][b]). This is not a strict chronological calculation. Instead, certain kinds of delay, which are defined in the speedy trial statute (CPL § 30.30[4]), are excluded from the time chargeable to the People. The burden of demonstrating that such time periods meet the statutory criteria to be "excludable" is on the People (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333, 349 [1980]).
Here, the defendant has alleged that a delay in excess of 90 days specifically resulting from the People's delay in turning over search warrant materials is chargeable to the People. To be sure, "the failure of a district attorney to comply with the mandates of CPL article 240 relative to discovery is in no way inconsistent with the prosecution's continued readiness for trial" ( People v Caussade (162 AD2d 4, 8 [2d Dept 1990], lv denied 76 NY2d 984). However, the People may nonetheless be charged with post-readiness delay for failure to produce materials underlying a search warrant. Unlike other sorts of discovery, this failure prevents the defendant from making — and the court from deciding — a potentially dispositive motion to controvert the search warrant. Therefore, the prosecutor's delay does more than hamper defense preparation, it impeded the case from moving forward.
Accordingly, the Appellate Division, Second Department, has held that, where the People's "failure to prepare a protective order and provide the defense with a redacted copy of the search warrant and the confidential informant's supporting affidavit" causes an "unjustified and unreasonable" period of delay, all unexcused delay is chargeable to the People (People v Daley, 265 AD2d 566, 567 [2d Dept 1999]). Conversely, where the People provide the court with a reasonable explanation for the delay and the delay has not prejudiced the defendant, it may be excused (People v Saunders, 8 Misc 3d 214, 217 [Crim Ct, Kings County 2005]).
In this case, the People were directed by the court on June 5, 2013 to provide the defense with the search warrant materials by July 30, 2013. Yet, redacted warrant materials were not produced to the defense until April 28, 2014. The question, addressed here, is how much, if any, of that period of more than ten months was reasonable and justified, and is therefore to be excluded from the time chargeable to the People.
At the outset, it should be noted what is not in dispute in this case: the People have conceded 41 chargeable days. The People announced their readiness for trial when they converted the complaint to an information on June 5, 2013, five days after arraignment. The Court credits that statement of readiness as genuine (People v England, 84 NY2d 1, 4 [1994]). The remainder of the conceded time results from the People's subsequent post-readiness requests for specific adjournments. Only one of these adjournments, on September 15, 2014 (11 days) was requested after the People had produced the search warrant materials. The others all fall within the period when the search warrant materials were still outstanding. That delay, as noted above, itself prevented the case from moving forward. Therefore, the Court will assume that 16 days are to be charged to the People for adjournments before and after the period during which the search warrant materials were outstanding, and will address only the intervening period of delay.
The People answered not ready and requested definite adjournments on December 16, 2013 (7 days); March 27, 2014 (18 days).
On June 5, 2013, the case was adjourned to July 30, 2013 for two purposes: Discovery by Stipulation (DBS), and for the People to "turn over search warrant or any affidavit or minutes regarding the search warrant" (Minutes of 6/5/13, Defendant's Reply Ex. A). The People are not charged with this adjournment — both because it was for the purpose of providing discovery to the defense (People v Dorilas, 19 Misc 3d 75, 76-77 [App Term, 2nd and 11th Jud Dists 2008]), and because it would be reasonable to allow this 45-day period to obtain the search warrant materials.
On July 30, 2013, the People served and filed timely DBS. The People did not, however, provide the warrant materials. The People's failure to provide the warrant materials as directed was not something that "directly implicate[d] their ability to proceed with trial" (People v Nielsen, 306 AD2d 500, 501 [2d Dept. 2003]). Therefore, it does not undermine their earlier statement of readiness. It may, however, have been "attributable to their inaction" (id.). In their Surreply, the People explain that the search warrant in this case was issued in New York County pursuant to an application to the Special Narcotics Court. The records of this warrant application are, the People assert, maintained by entities not "under the control of the Kings County District Attorney's Office." In particular, the People identify "the New York County Special Narcotics Court reporters and the New York County District Attorney's Office" (P's Surreply p. 6). Notably, this is the same situation that was presented in People v Saunders, 8 Misc 3d at 217, in which a judge of this court found, ten years ago, that a period of four months for the People to obtain and produce warrant materials was neither unreasonable nor unexplained. This Court recognizes that some period of time may well be required to obtain an unsealing order, request the documents, obtain the documents, and seek a protective order. Since defendant had failed to state the real grounds of his motion until his Reply, the Court extended an unusual invitation to the People to submit a Surreply in which they would have the opportunity to describe this process and any efforts they made to expedite it.
The People's submissions include an affirmation signed on July 10, 2013 (35 days after they were first directed to provide search warrant materials) in support of a motion to unseal the warrant materials (P's Surreply Appx 1). The People have also submitted an undated unsealing order of the court (P's Surreply Appx 2) and an undated letter from the Brooklyn District Attorney's Office addressed "To Whom It May Concern," which does not reference the unsealing order but requests copies of the search warrant materials (P's Surreply Appx 3). Notably, however, the People's Surreply Affirmation contains no sworn statements of fact regarding any of these submissions. Instead, as to the motion for unsealing, the Surreply Memorandum of Law states only that the People "served" it on July 10, 2013 (Surreply Memo p. 6), by which it is presumed they mean the motion was submitted on that date to the court. The People provide no dates for any of the subsequent events, but say only that they "then" received the unsealing order and "thereafter" sent a request for the materials. The only other chronology in the People's submission is their assertion that "[o]n or about March 27, 2014, the People received the search warrant materials and filed proposed redactions upon this Court, and soon thereafter upon the defendant" (P's Surreply at p. 6-7). The Court will not charge the People with the period from March 27 to April 28, 2014, during which the People's motion for a protective order was pending (CPL 30.30[4][a]).
In an effort to better understand the history of this case, the Court obtained on its own the available minutes of the court appearances during which the search warrant materials were still outstanding: July 30, October 8, and December 16, 2013; and March 27, 2014. (The minutes of February 5, 2014 could not be produced because of a technical problem with the stenographer's machine.) The Court's perusal of these minutes and of the Court Action Sheet does not help the People. They reveal that the People did not provide any explanation of their failure to comply with their outstanding obligation on July 30, 2013 or at either of the next two adjournments. On February 5, 2014, eight months after the Court's original order to produce the warrant materials, this Court gave the People one last opportunity to provide them before the next adjournment date (Court Action Sheet, entry for 2/5/14). The People complied with this instruction on March 27, 2014 by "handing up search warrant materials with proposed redactions for the Court to review" (Minutes of 3/27/14 at 2). A protective order was issued and the redacted materials were provided to the defendant at the following adjournment, April 28, 2014.
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On the People's undated appendices and vague unsworn assertions, it cannot be said that they have adequately explained the delay in producing the warrant materials or demonstrated that it was reasonable (cf. People v Saunders, 8 Misc 3d at 217). Indeed, by not advising the court at the time as to their progress — or the reasons for their lack of progress — in producing the warrant materials, the People failed to discharge their burden "to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged" ( People v Cortes, 80 NY2d 201, 215-16 [1992]). That alone would be reason enough for this Court to grant defendant's motion.
The People assert that "the majority of time delays in the case have been at the defendant's request when the defense has not been ready for trial and when the defense has requested motion schedules" (Surreply Mem. p. 7). The Court finds this argument utterly unpersuasive, inasmuch as it was the People's failure to produce the search warrant materials that left the defense unable to proceed to trial (People v Daley, 265 AD2d at 567).
From July 30, 2013 to March 27, 2014, the date that the People submitted the search warrant to the court for redactions, 239 days passed. Even excusing the same four months of delay accorded the People for this purpose by the court in People v Saunders, cited above, that leaves roughly four additional months of essentially unexplained delay. The People have not met their burden of showing that they should not be charged for this time, which itself exceeds the 90 day limit, in addition to the 16 days previously noted.
CONCLUSION
Accordingly, defendant's motion is GRANTED.
This constitutes the Decision and Order of the Court.
DATED:April 8, 2015
Brooklyn, New York