Opinion
Docket No. CR-017389-22QN
06-30-2023
The PEOPLE of the State of New York v. PIZZULLI, Defendant.
The People had 90 days from commencing this case to validly state ready for trial. (See C.P.L. § 30.30[1][b] ). The People commenced the case on July 14, 2022. Therefore, the People had until October 12, 2022, to validly state ready. The defense has now filed a C.P.L. § 30.30 motion, arguing that the People never validly stated ready within that time.
On September 15, 2022, the People filed certificates of discovery compliance and readiness with the court. However, instead of emailing these documents and producing discovery to the defense attorney's correct email, the People sent it all to various invalid addresses. As a result, the defense did not receive it. For the next 27 days before the C.P.L. § 30.30 deadline expired, the People made no other efforts to send the documents or discovery to the defense. During this time, the defense had no idea that anything had been filed or served. On October 26, 2022, the parties appeared in court. For the first time, the defense learned then and there that the People had purportedly stated ready off calendar over a month earlier. As a result, the People delayed 41 days in notifying the defense of their readiness.
This presents a straightforward issue under caselaw. In People v. Kendzia , the Court of Appeals explained that a valid statement of readiness requires "either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record." ( 64 NY2d 331, 337 [1985] ). At minimum, this rule requires the People, when they file an off-calendar statement of readiness, to notify the defense of their readiness "promptly." If the People fail to notify the defense that they filed an off-calendar statement of readiness within a couple weeks, that is not prompt, and their statement is not effective. (See, e.g. , People v. Bloodworth , 173 AD3d 1838, 1838 [4th Dep't 2019] [17 days is not prompt]; People v. Bonilla , 94 AD3d 633 [1st Dep't 2012] [16 days is not prompt]; People v. Dweck , 64 Misc 3d 1204[A], at *2 [Crim. Ct., Kings County 2019] [20 days is not prompt]; People v. Waters , 196 Misc 2d 421 [City Ct., City of Elmira 2003] [29 days is not prompt]; People v. Chittumuri , 189 Misc 2d 743 [Crim. Ct., Queens County 2001] [28 days is not prompt]; People v. Todd , 184 Misc 2d 381 [Crim. Ct., Kings County 2000] [27 days is not prompt]; cf. People v. McClure , 2023 NY Slip Op. 23184 [Crim. Ct., Bronx County 2023] [one day is prompt]).
As an aside, there is a good argument that a merely "prompt" notification is not sufficient, and that the People must instead notify the defense and court nearly simultaneously. The "prompt notification" requirement stems from a footnote in Kendzia , in which the Court of Appeals acknowledged that, "[i]f the prosecutor's statement of readiness in open court were made without defense counsel present, the prosecutor would have to promptly notify him of the statement of readiness." (64 NY2d at 337 n.* ). One should not overread this footnote. By its terms, it applies only to statements of readiness made "in open court. " (E.g. , People v. Bloodworth , 173 AD3d 1838, 1840 [4th Dep't 2019] ; see also People v. Collins , 186 Misc 2d 818, 821 [Crim. Ct., Richmond County 2000] [although endorsing a promptness analysis, acknowledging that Kendzia mandates that the People send the notice "nearly simultaneously to the defense and the court"]). This distinction does not matter here, however, as the People met neither standard.
In addition to Kendzia ’s service requirement, the People must now also "actually produce[ ]" automatic discovery to the defense before they may validly state ready. ( People ex rel. Ferro v. Brann , 197 AD3d 787, 787-88 [2d Dep't 2021] ). In Ferro , the People thought they had produced all the discovery listed on their certificate; but they were wrong, they had not. (See People v. Francis , 75 Misc 3d 1224[A], at *2 [Crim. Ct., Bronx County 2022] [explaining Ferro ]; see also Pr. Br. at 7-23, People ex rel. Ferro v. Brann , A.D. Docket No. 2021-05850 [Aug. 18, 2021]). The Appellate Division, Second Department, concluded, over the People's protestations of "good faith," that the certificate of compliance "could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant." ( Ferro , 197 AD3d at 788 ; see also Francis , 75 Misc 3d 1224[A], at *2 ).
Applying these principles, the People's statement of readiness here was not effective. Their 41-day delay well exceeded any standard of a prompt notification of readiness—see the cases above. And they failed to actually produce the discovery on their certificate to the defense before or at the time they filed their certificate. Nonetheless, the People ask the court to stop the C.P.L. § 30.30 clock, anyway, as of the date of their ineffective statement of readiness. The court cannot do so.
First, the court rejects the People's insistence on "good faith." Kendzia announced no good-faith exception to its service rule. (See generally 64 NY2d at 331-38 ). Just because the People must make a statement of readiness in good faith does not imply that they need only attempt service in good faith. For service, "the fact that the People acted in good faith is irrelevant." ( Chittumuri , 189 Misc 2d at 746-47 ). "What is relevant is that the People have an obligation to inform" the defense attorney of their readiness. (Id. ). A statement of readiness made ex parte has "no effect and fails to satisfy the requirements of Kendzia ." ( Id. at 748 ).
However, even if there were a good-faith exception to service, the court would not find it here. The People were clearly on notice of the correct Queens Defenders service email address from defense counsel's written notice of appearance at arraignment. (See Def. Mot. Ex. D). Inexplicably, they chose not to use it. Instead, the People decided to send their documents and discovery to the defense attorney's personal work email address. Normally, that would be fine; here, however, that resulted in them sending the documents to a series of invalid email addresses. First, they sent the documents to an email address "@queensda.org." (See Def. Mot. Ex. A). That is the well-known suffix of email addresses for the Queens District Attorney's Office—not for any defense organization. Surely, the People know this. Then, they sent it to a misspelled version of the defense attorney's personal work email address. (See id. ). That was unjustifiable because the attorney's name was plainly spelled correctly on the notice of appearance. (Def. Mot. Ex. D). Worryingly, even in their response to this motion, the People still seem confused about what the correct email is. Now they articulate it as "[email protected]." (See Pr. Resp. at 2-3). It is unclear where that comes from.
Second, the court rejects the People's contention that the defense had to inform them that their own statement of readiness was illusory before the C.P.L. § 30.30 clock would continue running. Obviously, a defense attorney cannot inform the People of a problem with their service before the attorney ever even knows the People had attempted service. Here, though, even if the defense attorney had done so immediately on October 26, 2022, over two weeks would have already elapsed from the speedy-trial deadline. In any event, this court has previously explained in depth that there is no such requirement like this in statute or caselaw. (E.g. , People v. Jawad , 2023 NY Slip Op. 5057 4[U], at *2-*3 [Crim. Ct., Queens County 2023]; People v. Spaulding , 75 Misc 3d 1219[A], at *5-*7 [Crim. Ct., Bronx County 2022] ). The People's readiness is their own responsibility. It was either valid, or it was not. They either did all they needed to do to "bring the case to a point where it may be tried," ( People v. England , 84 NY2d 1, 4 [1994] ), or they did not. Courts do not possess the discretion to artificially stop the C.P.L. § 30.30 clock, without an initial valid statement of readiness, unless a C.P.L. § 30.30[4] exclusion applies. Here, the People point to no such exclusion. Thus, the clock continued running.
Finally, the court rejects the People's arguments about "prejudice"—a consideration wholly irrelevant to this C.P.L. § 30.30 motion. (See People v. Hamilton , 46 NY2d 932, 933-34 [1979] ["Finally, it bears emphasis that the right to a speedy trial guaranteed by CPL 30.30, which relates to prosecutorial readiness, is not dependent in any way on whether the defendant ... can demonstrate prejudice resulting from the delay."]; People v. O'Neal , 99 AD2d 844, 845 [2d Dep't 1984] ["Moreover, the right to a speedy trial as guaranteed by CPL 30.30 relates to prosecutorial readiness and is not in any way dependent upon prejudice to the defendant."]; People v. Adrovic , 69 Misc 3d 563, 574 [Crim. Ct., Kings County 2020] ["[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant."]; People v. Darren , 75 Misc 3d 1208[A], at *5 [Crim. Ct., NY County 2022] ; People v. Diaz , 75 Misc 3d 314, 320 & n.3 [Crim. Ct., Bronx County 2022] ; People v. Pierna , 74 Misc 3d 1072, 1089-90 [Crim. Ct., Bronx County 2022] ; People v. Quinlan , 71 Misc 3d 266, 272 [Crim. Ct., Bronx County 2021] ).
As a result, the People never validly stated ready for trial within their allotted time. (See C.P.L. § 30.30[1][b] ). By the October 26, 2022, court date, 104 days had already elapsed without a valid statement of readiness. The People identify no periods within that time that should be excluded under C.P.L. § 30.30[4]. Accordingly, the defense's C.P.L. § 30.30 motion must be granted. The case is dismissed.
The foregoing constitutes the order and decision of the court.