Opinion
CR-006795-20QN
04-22-2021
The PEOPLE of the State of New York v. Matthew POPKO, Defendant.
The Legal Aid Society, Kew Gardens, Queens (Glenda Callender, of counsel) for defendant. Melinda Katz, District Attorney, Queens (Sarah Elardo, of counsel) for the People.
The Legal Aid Society, Kew Gardens, Queens (Glenda Callender, of counsel) for defendant.
Melinda Katz, District Attorney, Queens (Sarah Elardo, of counsel) for the People.
Mary L. Bejarano, J.
Summary of the court's decision: The defendant's motion to dismiss pursuant to CPL 30.30 is granted.
The defendant is charged with one count of each: Assault in the Third Degree ( Penal Law § 120.00 [1] ), Menacing in the Second Degree ( Penal Law § 120.14 [1] ), Criminal Obstruction of Breathing or Blood Circulation ( Penal Law § 121.11 [a] ), Resisting Arrest ( Penal Law § 205.30 ), Criminal Possession of a Weapon in the Fourth Degree ( Penal Law § 265.01 [2] ), and Harassment in the Second Degree ( Penal Law § 240.26 [1] ). By motion dated March 17, 2021, the defendant seeks to dismiss the accusatory instrument on statutory speedy trial grounds ( CPL 170.30 [1] [e] ; 30.30). The People, in a response dated April 16, 2021, oppose the defendant's motion. This decision is based on the defendant's motion, the People's response, and the Court file.
Where, as in the instant case, the top count charged is an A misdemeanor, punishable by a maximum imprisonment term of one year, the People are required to be ready for trial within 90 days of the commencement of the action ( CPL 30.30 [1] [b] ; Penal Law § 70.15 [1] [a] ).
Generally, a criminal action is commenced by the filing of the first accusatory instrument ( CPL 1.20 [17] ; People v Lomax , 50 NY2d 351 [1980] ). Except for periods of excludable delay (see CPL 30.30 [4] ), the proscribed period continues to run until the People state their present readiness for trial ( People v Price , 14 NY3d 61 [2010] ; People v Cortes , 80 NY2d 201, 208 [1992] ; People v Kendzia , 64 NY2d 331 [1985] ).
"[O]nce a defendant has shown the existence of an unexcused delay greater than [90 days], the burden of showing that time should be excluded falls upon the People" ( People v Barden , 27 NY3d 550 [2016], quoting People v Santos , 68 NY2d 859, 861 [1986] ; see People v Santana , 80 NY2d 92, 105 [1992] ).
"Generally, the burden is on the People to establish their entitlement to exclude any pre-readiness delays from the calculation under a CPL 30.30 motion and the burden is on a defendant to prove that any post-readiness delays that directly implicate the People's ability to proceed with trial are chargeable to the People, unless the People failed to satisfy their burden to ensure that the record is sufficiently clear as to who is chargeable for an adjournment (see People v Cortes , 80 NY2d 201, 210, 215-216 [1992] )" ( People v Robinson , 67 AD3d 1042 [3d Dept 2009] ).
Procedural History
The initial misdemeanor complaint was filed, and the defendant was arraigned, on March 24, 2020.
At the August 27, 2020 virtual calendar call, the matter was adjourned to September 24, 2020. The matter was later administratively adjourned to March 8, 2021.
On December 21, 2020, the People filed a supporting deposition, certificate of discovery compliance, and statement of readiness off-calendar. The People's statement of readiness states: "Please take notice, that the People are ready for trial in the above-captioned case." The People's certificate of discovery compliance also contains a statement of readiness, which states: "Please be advised that the People are ready for trial in the above-captioned case pursuant to CPL Section 30.30."
On March 8, 2021, the Court conducted a virtual calendar call in Part AP4-V. At the calendar call, the People stated the following on the record: "At this time pursuant to the CPL 30.30 (5-a), it's the People's position that the certificate and the supporting deposition complies with 115 and 140 of CPL" (see March 8, 2021 minutes from People's Exhibit 2). The Court found the complaint to be facially sufficient and deemed the accusatory instrument to be an information as of March 8. The notations by the Honorable Judge Danielle Hartman for this proceeding are as follows:
SD Filed: 12/21/2020
5a: 3/8/2021 facially sufficient
Deemed Info: 3/8/2021
CofC 5: 12/21/2020
Contact with wit: end of February
On March 17, 2021, the defendant filed the instant motion to dismiss pursuant to CPL 30.30.
Discussion
The defendant argues that the People's statements of readiness filed on December 21, 2020 failed to comply with the requirements of CPL 30.30 (5-a) and therefore were invalid to stop the speedy trial clock on December 21, 2020. This Court agrees.
CPL 30.30 (5) states:
"Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness. If, after conducting its inquiry, the court determines that the people are not ready to proceed to trial, the prosecutor's statement or notice of readiness shall not be valid for purposes of this section. Any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of [ CPL 245.20 ] and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met. This subdivision shall not apply to cases where the defense has waived disclosure requirements."
CPL 30.30 (5-a) states:
"Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of [ CPL 100.15 and 100.40 ] and those counts not meeting the requirements of [ CPL 100.15 and 100.40 ] have been dismissed."
"[O]ur task—as it is in every case involving statutory interpretation—is to ascertain the legislative intent and construe the pertinent statutes to effectuate that intent" ( People v Roberts , 31 NY3d 406, 418 [2018], quoting Matter of MB , 6 NY3d 437, 447 [2006] ). "As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" ( People v Golo , 26 NY3d 358, 361 [2015], quoting Majewski v Broadalbin—Perth Cent School Dist , 91 NY2d 577, 583 [1998] ). "It is an axiom of statutory construction that the legislative intent is to be ascertained from the language used, and that where the words of a statute are clear and unambiguous, they should be literally construed" ( People v Munoz , 207 AD2d 418, 419 [2d Dept 1994], lv denied 84 NY2d 938 [1994], quoting McKinney's Cons Laws of NY, Book 1, Statutes §§ 76, 94). "[C]ourts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of the statutes" ( People v Pagan , 19 NY3d 368, 370 [2012] ).
CPL 30.30 (5) and 30.30 (5-a) are independent subsections that both deal with the validity of the People's statement of readiness: "the prosecutor's statement or notice of readiness shall not be valid for the purposes of this section" ( CPL 30.30 [5] ); "statement of readiness shall not be valid unless." ( CPL 30.30 [5-a] ). The plain reading of these subsections, along with CPL 245.50 (1), 245.50 (3), and 245.20, provides a new framework for what constitutes a valid statement of readiness. In order to be deemed ready for trial, the People must now file a certificate of discovery compliance, indicating that they complied with all discovery obligations enumerated in CPL 245.20 ( CPL 245.50 [1] and [3] ; CPL 30.30 [5] ); People v Lobato , 66 Misc 3d 1230[A], 2020 NY Slip Op 50322[U] [Crim Ct, Kings County 2020] ; People v Mashiyach , 70 Misc 3d 456 [Crim Ct, Kings County 2020] ; People v Villamar , 69 Misc 3d 842 [Crim Ct, NY County 2020] ; People v Rambally , 68 Misc 3d 1212[A], 2020 NY Slip Op 50921[U] [District Ct, Nassau County 2020] ; People v Hines , 70 Misc 3d 1212[A], 2021 NY Slip Op 50050[U] [Crim Ct, Bronx County 2021] ).
In addition, the People must certify that the accusatory instrument is facially sufficient pursuant to CPL 100.15 and 100.40 ; otherwise, the People's "statement of readiness shall not be valid" ( CPL 30.30 [5-a] ; see People v Ramirez-Correa , ––– Misc 3d ––––, 2021 NY Slip Op 21040 [Crim Ct, Queens County 2021] ; People v Ross , Crim Ct, NY County, Aug 11, 2020, Gaffey, J., docket no. CR-025918-19NY; People v Lopez , Crim Ct, NY County, Jan 25, 2021, Chu, J., docket no. CR-001527-19NY; People v Rivera , Crim Ct, NY County, April 6, 2021, Maldonado-Cruz, J., docket no. CR-004779-20NY). Only then, after the People satisfy both CPL 30.30 (5) and 30.30 (5-a) and when the People state or otherwise provide notice that they are ready for trial, shall the Court conduct an inquiry as to the People's actual readiness pursuant to CPL 30.30 (5). Therefore, both CPL 30.30 (5) and 30.30 (5-a) must be satisfied before the People can be considered ready for trial. There is no requirement in the statute that they be done contemporaneously.
In this case, the People filed two statements of readiness on December 21, 2020: "Please take notice, that the People are ready for trial in the above-captioned case" and "Please be advised that the People are ready for trial in the above-captioned case pursuant to CPL Section 30.30". Neither statement is sufficient to satisfy the requirements of CPL 30.30 (5-a). Pursuant to CPL 30.30 (5-a), the People must certify that all counts of the accusatory instrument comport with the requirements of CPL 100.15 and 100.40 — that is, in some form and substance, that the People state that
"they are ready for trial and that they have an information where each count provides reasonable cause to believe that the defendant committed each count charged ( CPL 100.40 [1] [b] ), that there are facts of an evidentiary character that support each count ( CPL 100.40 [1] [a] ; 100.15 [3]), and that there the non-hearsay facts, taken as true, support every element of each offense ( CPL 100.40 [1] [c] ; 100.15 [3])" ( Ramirez-Correa , 2021 NY Slip Op 21040, *6).
Therefore, the Court cannot find that the People "implicitly" certified that they satisfied all requirements of CPL 30.30 (5-a) by certifying that they were ready for trial pursuant to CPL 30.30.
The People's statements of readiness, along with the filing of the accusatory instrument, are also not "self-certifying." CPL 30.30 (5-a) clearly states that it is the "the prosecuting attorney," not the Court, who must certify that the accusatory instrument meets the requirements of CPL 100.40 and 100.15 for the People's statement of readiness to be valid. Moreover, any statement of readiness by the People must be "an affirmative representation of readiness," either on the record or via written notice to both defense counsel and the appropriate court clerk ( People v Kendzia , 64 NY2d 331, 337 [1985] ). Even an affirmative representation of the People's readiness for trial by the Court does not satisfy the People's obligation to declare their readiness for trial ( People v Jacobs , 28 Misc 3d 499 [Nassau Dist Ct 2010] ). Since the People's statements of readiness failed to certify in any way the facial sufficiency of the accusatory instrument as required by CPL 30.30 (5-a), the Court finds that the statements of readiness filed on December 21, 2020 did not stop the speedy trial clock on said date.
Although the People attempted to modify their statements of readiness to meet the requirements of CPL 30.30 (5-a) at the March 8, 2021 virtual calendar call, this occurred outside the 90-day time period allowed by CPL 30.30 (1) (b). The People must communicate their readiness for trial at the time of actual readiness, not in a delayed argument that they were previously ready for trial (see People v Hamilton , 46 NY2d 932, 933-934 [1979] ). The People argue that "they were not given an earlier opportunity to address the accusatory instrument on the record; however, had the Court provided the People with an earlier date, this defect could have been cured." Such reasoning, however, incorrectly shifts the burden of the 30.30 (5-a) certification to the Court. As explained above, the Court conducts an inquiry as to the People's actual readiness pursuant to CPL 30.30 (5) only after the People satisfy the requirements of CPL 30.30 (5) and 30.30 (5-a) and when the People state or otherwise provide notice that they are ready for trial. Since the beginning of the COVID-19 state of emergency in March 2020, the Court has added virtual parts to allow either party to appear before a judge on the record. The People could have requested that the matter be advanced to address the 30.30 (5-a) certification on the record. Alternatively, the People could have filed a revised statement of readiness at any time within the statutorily prescribed period. In this case, they did neither. Where, as here, the People failed to properly state their readiness within 90 days, dismissal is the only appropriate remedy ( CPL 30.30 [1] [b] ; Penal Law § 70.15 [1] [a] ).
Accordingly, the Court finds that as of March 8, 2021, 155 days are chargeable against the People. As CPL 30.30 was suspended from March 20, 2020 to October 4, 2020 due to Executive Orders 202.8 and 202.67, the period from March 24, 2020 to October 4, 2020 is excluded from speedy trial calculations. Since the People's statements of readiness failed to stop the speedy trial clock on December 21, 2020, the 155-day period from October 4, 2020 to March 8, 2021 is included in speedy trial calculations. Accordingly, the defendant's motion to dismiss pursuant to CPL 30.30 is granted.
This constitutes the decision and order of the Court.