Opinion
No. 2014BX002134.
10-14-2016
The PEOPLE of the State of New York v. Paul REYES, Defendant.
Darcel Clark, District Attorney, Bronx County, Bronx by Assistant District Attorney Jennifer Russell, Defendant's Attorney. Colby Dillon, Esq., The Bronx Defenders, Bronx.
Darcel Clark, District Attorney, Bronx County, Bronx by Assistant District Attorney Jennifer Russell, Defendant's Attorney.
Colby Dillon, Esq., The Bronx Defenders, Bronx.
LAURENCE E. BUSCHING, J.
This case calls upon the court to determine whether off-calendar statements of readiness (SORs) are illusory when they are based on the purported availability of a witness with an established track record of unreliability. Under the circumstances presented here—where there have been twenty-three calendar calls and the People have only answered ready six times—the court finds that the presumption of truthfulness and accuracy has been overcome and the SORs are illusory.
The defendant is charged with Assault in the Third Degree (Penal Law [PL] § 120.00[1] ); Menacing in the Third Degree (PL § 120.15); and Harassment in the Second Degree (PL § 240.26[1] ). He has moved to dismiss the accusatory instrument pursuant to Criminal Procedure Law (CPL) § 30.30(1)(b). The defendant's motion is GRANTED.
DISCUSSION
To establish a violation under CPL § 30.30, a defendant must demonstrate the existence of a delay in excess of the statutory time period. People v. Santos, 68 N.Y.2d 859, 861 (1986). Upon meeting this burden, the burden then shifts to the People to establish that certain periods within that time period should be excluded. People v. Fields, 214 A.D.2d 332 (1st Dept 1995). The People bear the burden of clarifying, on the record, the basis for an adjournment so that a motion court can determine to whom the adjournment should be charged. People v. Cortes, 80 N.Y.2d 201, 216 (1992) ; People v. Liotta, 79 N.Y.2d 841, 841 (1992).
Where, as here, the highest count in an accusatory instrument is a class A misdemeanor, the prosecution must be ready for trial within ninety (90) days. CPL § 30.30(1)(b). The ninety days commences with the filing of the accusatory instrument. CPL § 1.20(17) ; see also People v. Stirrup, 91 N.Y.2d 434, 438 (1998).
The People are ready for trial when they either communicate their actual readiness in open court or file a SOR and serve a copy on the defendant's attorney. People v. England, 84 N.Y.2d 1 (1994) ; People v. Kendzia, 64 N.Y.2d 331 (1985). A SOR is valid when the People have removed all legal impediments to the commencement of their case. England, at 4. Once the People have announced their readiness to proceed to trial they have satisfied their obligation under the statute (People v. Giordano, 56 N.Y.2d 524 [1982] ) and are chargeable only with delay they have caused which directly implicates their ability to proceed to trial. Cortes, at 210.
Based on a review of the official court file and the submissions of the parties, the court finds as follows:
January 13, 2014–February 24, 2014
On January 13, 2014, the defendant was arraigned. The People answered ready and defense counsel waived motions. The matter was adjourned to February 24, 2014, for trial. Defense counsel contends that because the People did not answer ready again on February 24, 2014, and requested to file a SOR if and when they subsequently became ready, their declaration of readiness at arraignment was illusory. Defense counsel further contends that on multiple court dates, the People answered not ready to proceed, asked for short adjourn dates or filed certificates of readiness off-calendar, only to declare not ready at the next court appearance, demonstrating that the off-calendar statements of readiness by the People were not genuine.
For any statement of readiness to be effective, the People must (1) communicate their readiness and (2) actually be ready for trial. Kendzia, at 337. There is a presumption that such statements are accurate and truthful. People v. Acosta, 249 A.D.2d 161 (1st Dept 1998). Nevertheless, this presumption may be rebutted. Id. Generally, answering not ready on calendar calls after stating ready off-calendar may not by itself render the previous statement of readiness illusory. People v. Brown, 126 AD3d 516 (1st Dept 2015), lv granted 25 NY3d 1160 (2015) (defendant's bare contention that certificate of readiness was illusory because the People announced that they were not ready at the next court appearance insufficient to rebut the presumption that the certificate of readiness was accurate and truthful]; People v. Camillo, 279 A.D.2d 326 (1st Dept 2001) (People's unreadiness on successive calendar calls does not, standing alone, provide a basis for questioning prior claims of readiness or invalidate an earlier otherwise proper statement of readiness); People v. Tavarez, 147 A.D.2d 355 (1st Dept 1989), lv denied 73 N.Y.2d 1022 (1998) (fact that People filed a statement of readiness and were not ready on two subsequent adjourn dates did not negate their previous statement of readiness). On the other hand, repeated announcements of unreadiness in court immediately following off-calendar statements of readiness may, under certain circumstances, call into question whether the previous statements accurately reflected the People's present ability to try the case. People v. Guirola, 51 Misc.3d 13 (App Term, 2d Dept 2016) (People's repeated declarations of unreadiness in court rendered their prior off-calendar statements of readiness illusory); see generally People v. Rodriguez, 135 AD3d 587 (1st Dept 2016) (statements of readiness following multiple declarations of unreadiness deemed illusory); People v. Bonilla, 94 AD3d 6633 (1st Dept 2012) (statement of readiness followed by announcement of unreadiness deemed illusory).
The seminal case addressing evaluation of the veracity of the People's readiness is People v. Sibblies, 22 NY3d 1174 (2014). In Sibblies, the People filed an off-calendar SOR and subsequently answered not ready on the adjourn date because they were "continuing to investigate and awaiting medical records." Id. at 1176. Chief Judge Lippman, writing for three judges, found that "the People must demonstrate that some exceptional fact or circumstances arose after their declaration of readiness so as to render them presently not ready for trial." Id. at 1178. He found the earlier statement of readiness illusory because the People's need to investigate did not constitute "the type of ‘exceptional fact or circumstance’ contemplated in CPL 30.30(3)(b)." Id. at 1179.
Justice Graffeo, writing for the other three judges of the Court at the time, took a narrower approach, noting:
It is well settled that a statement of readiness made at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock' (People v. England, 84 N.Y.2d 1, 4 [1994] ). We have explained that the [actual readiness] requirement will be met unless there is proof that the readiness statement did not accurately reflect the People's position' " (People v. Carter, 91 N.Y.2d 795, 799 [1998] ). Id at 1180.
The defendant points to People v. Graham, ( [Crim Ct, Bronx County, January 20, 2015, McGuire, J., docket No. 2013BX055612] ) and People v. Ramos, (45 Misc.3d 1219[A] [Crim Ct, Queens County 2014] ), cases from courts of coordinate jurisdiction. In both Graham and Ramos, the People stated ready at arraignment, but then answered "not ready" at multiple subsequent calendar calls. As a result, the Graham and Ramos courts found the People's initial declaration of readiness illusory and charged the People with time which had accrued after their initial declaration of readiness. These courts determined that a readiness statement at arraignment followed by subsequent repeated unreadiness for trial belied the People's initial statement of readiness. They reached this conclusion by "[a]nalyzing the case as a whole rather than focusing on each adjournment separately." Ramos, at 4. In Graham, the court took special note that the People did not answer ready again until almost one year after their initial statement of readiness at defendant's arraignment. Id.
Here, however, the presumption of truthfulness of the People's in-court declaration of readiness at arraignment has not been overcome. The People affirm in their response that at the time of arraignment, "the complaining witness had just been interviewed by an Assistant District Attorney and recounted her story of the defendant's [purported] criminal action." People's response at 4. The defendant was arraigned on a first party complaint, signed by the complainant in the District Attorney's Office shortly before he appeared in court. There were no apparent impediments to the People proceeding to trial at that time.
The People affirm that after the defendant's arraignment on January 13, 2014, and the adjourn date on February 24, 2014, they were unable to reach the complaining witness to notify her for trial, and as a result she did not appear. It is entirely plausible that they could have been genuinely ready to proceed to trial at arraignment and then not ready on the subsequent court date. Accordingly, the People's declaration of readiness at arraignment is deemed valid.
[0 chargeable days]
February 24, 2014–April 9, 2014
As noted, on February 24, 2014, the People answered not ready and stated that they would file a SOR if and when they became ready. The matter was adjourned to April 9, 2014 for trial. On March 6, 2014, the People filed a SOR off calendar based on "contact with the complaining witness who stated that she was available and presently ready for trial," and that the assigned assistant district attorney "was able to advise her of the next court date." People's response at 12. Defense counsel contends that this SOR is illusory because the People answered not ready on the next court date. The People contend that on March 6, 2014, the date they filed their SOR, they were in fact ready.
By the People's own admission, however, on multiple occasions throughout the long history of this case, the complaining witness, after informing the People that she was available to come in for trial, failed to do so on the agreed-upon date or even contact the assigned assistant district attorney. This pattern is similar to, if not more pronounced than, that described in People v. Guirola, 51 Misc.3d 13 (App Term, 2d Dept 2016). In Guirola, the court found illusory statements of readiness that were followed by repeated declarations of unreadiness, noting:
This is not a case where an off-calendar statement of readiness is filed, followed by one or two requests for adjournments (cf. Brown, 126 AD3d at 518–519 ). To the contrary, the record reveals that over a period of multiple successive adjournments, the People engaged in an egregious pattern of avoiding the speedy trial clock by simply filing off-calendar statements of readiness after in-court declarations of unreadiness. Id. at 17–18.
Readiness for trial "entails more than a mere empty assertion of readiness." Stirrup, at 440; England, at 6. After initially answering ready at arraignment on January 13, 2014 and filing a statement of readiness on March 6, 2014, the People did not answer ready again until February 6, 2015, nearly one year later. The People concede that the complainant had communicated to them that she was available for trial on March 26, 2015, May 7, 2015, and July 28, 2015, but did not come in or contact the assigned assistant district attorney on any of these dates. In contrast to the statement at arraignment, where the complaining witness had been physically present, the People's later off-calendar statements, based upon the representations of a complaining witness who repeatedly failed to come in or contact the assigned assistant district attorney when she had said she would, were "empty assertions of readiness." People v. Carthon, 2016 Slip Op 26216 (App Term, 2nd Dept 2016) ("notification, by itself, does not establish the People's readiness for trial"); People v. America, 51 Misc.3d 1003,1007 (Crim Ct, New York County 2016) (court found the People's "progression of unreadinesses called into question the accuracy of a [previous] statement of readiness.").
This extraordinary pattern of cavalierly filing off-calendar statements of readiness based on a promise to appear from a witness who has failed to fulfill similar promises on court dates following the filing of SORs "rebuts the presumption of truthfulness and accuracy of these off-calendar statements of readiness and leads to the inescapable conclusion" that they were illusory. Guirola, at 18. The People did nothing to insure that the witness would actually be available on any date on which they filed a SOR, such as asking her to actually come to court or their office, having an investigator, social worker or detective bring her or advancing the case in order to issue a subpoena.
The court finds the March 6, 2014, along with the February 6, 2015, March 27, 2015, May 13, 2015, July 6, 2015 and July 31, 2015, statements of readiness to be illusory. The People are charged with this entire adjournment.
[44 chargeable days]
April 9, 2014–May 8, 2014
On April 9, 2014, the defendant did not appear and the court ordered a bench warrant. The parties agree that no time is chargeable to the People for this adjournment. Notwithstanding the absence of any declaration of readiness by the People, because the defendant failed to appear, this adjournment is excludable pursuant CPL § 30.30(4)(c)(ii).
[0 chargeable days]
May 8, 2014–June 19, 2014
On May 8, 2014, the defendant returned on the warrant and the warrant was expunged. The parties agree that no time is chargeable to the People for this adjournment. The People are entitled to a reasonable time to prepare for trial after a defendant is returned on a bench warrant. People v. Roberts, 236 A.D.2d 233 (1st Dept.1997), lv denied 91 N.Y.2d 836 (1997) ; People v. Muhanimac, 181 A.D.2d 464, 465–466 (1st Dept.1992), lv denied 79 N.Y.2d 1052 (1992) ; People v. Benjamin, 292 A.D.2d 191 (1st Dept, 2002).
On May 23, 2014, defendant was arraigned on a first party complaint and charged under docket 2014BX027459. The People answered ready and the matter was adjourned June 19, 2014 for trial.
[0 chargeable days-Docket 2014BX002134]
[0 chargeable days-Docket 2014BX027459]
June 19, 2014–July 29, 2014
On June 19, 2014 the People answered not ready and requested two weeks. Ordinarily, post-readiness, the People would be charged only with the fourteen days they requested, but because the court set a motion schedule, this entire adjournment is excludable pursuant to CPL § 30.30(4)(a).
Similarly, with respect to docket 2014BX027459, the People answered not ready and requested two weeks. Although they were not ready, the People assert that they should not be charged with any of the delay because they were in need of a transcript to demonstrate that the defendant was advised of the issuance of the order he is accused of violating. A copy of the underlying order of protection filed to convert the contempt case indicates that the defendant was present in court and advised of the issuance and contents of the order. The court rejects the People's assertion that the court reporter's delay in providing minutes to the People is an exceptional circumstance, as the minutes were not necessary to be ready for trial. CPL § 30.30(4)(g) ; People v. Smietana, 98 N.Y.2d 336, 341 (2002) (an "exceptional circumstance" is available "only where the People are truly unable to take necessary steps to prepare for trial and announce readiness due to circumstances which are beyond their control ..."). Nevertheless, because the matter was adjourned for motion practice, this adjournment is excludable pursuant to CPL § 30.30(4)(a).
[0 chargeable days-Docket 2014BX002134]
[0 chargeable days-Docket 2014BX027459]
July 29, 2014–September 12, 2014
On July 29, 2014, dockets 2014BX002134 and 2014BX027459 were consolidated under the older docket. The matter was adjourned to September 12, 2014 for trial. Both parties agree that this adjournment is excludable. The time consumed by a motion to consolidate is excludable. People v. Osorio, 297 A.D.2d 231 (1st Dept 2002) ; People v. Williams, 19 Misc.3d 675 (Crim Ct, N.Y. County 2008).
[0 chargeable days]
September 12, 2014–October 22, 2014
On September 12, 2014, the People answered not ready because the assigned assistant was out of the office. They requested September 15, 2014, the date the assigned would return. The matter was adjourned to October 22, 2014. Post-readiness, the People are charged only with the time requested. People v. Bruno, 300 A.D.2d 93 (1st Dept 2002), lv denied 100 N.Y.2d 641 (2003) ; People v. Goss, 67 N.Y.2d 792, 797 (1996) ; People v. Johnson, 232 A.D.2d 173 (1st Dept 1996), lv denied 89 N.Y.2d 924 (1996). The defense concedes that only three days are chargeable to the People.
[3 chargeable days]
October 22, 2014–December 9, 2014
On October 22, 2014, the People answered not ready because the assigned assistant was working nights. The People requested October 28, 2014. The court adjourned the case to December 9, 2014. The parties agree that six days are chargeable.
[6 chargeable days]
December 9, 2014–January 28, 2015
On December 9, 2014, the People answered not ready because the assigned assistant was not in the office due to illness. The People requested December 10, 2014, the following day. The court, however, adjourned the case to January 28, 2015 for trial. The parties agree that one day is chargeable to the People.
[1 chargeable day]
January 28, 2015–March 4, 2015
On January 28, 2015, the People answered not ready and requested to file a statement of readiness if and when they became ready. The court adjourned the matter to March 4, 2015 for trial. On February 6, 2015, the People filed a SOR. The People contend that this entire adjournment is excludable as an exceptional circumstance because they still did not have the minutes they requested for defendant's contempt case.
As previously noted, the court does not deem the People's delay in obtaining minutes here as an exceptional circumstance and the statement of readiness filed is deemed illusory. Thus, the People are charged with the entire adjournment.
[35 chargeable days]
March 4, 2015–March 26, 2015
On March 4, 2015, the People were not ready because the assigned assistant was on trial in another part. They requested March 5, 2015. The court adjourned the matter to March 26, 2015. The parties agree that one day is chargeable to the People.
[1 chargeable day]
March 26, 2015–May 7, 2015
On March 26, 2015, the People were not ready and requested to file a statement of readiness if and when they became ready. The matter was adjourned to May 7, 2015 for trial. The following day, March 27, 2015, the People filed a statement of readiness. Here, the People contend that they had contact with the complaining witness "within the two weeks approaching the trial date, and she stated that she was available for March 26, 2015." People's response at 21. The People further assert that on the morning of March 26, 2015, they were unable to reach the complaining witness and as a result could not answer ready or request a specific date for trial. According to their response, later that day, "after the calendar call, the complaining witness, who has continuously been cooperative with the instant case, reached out to the assigned assistant and stated that she was available at that time and presently ready for trial." Id. As previously noted, the court finds the statement of readiness filed on March 27, 2015 illusory. Accordingly, the People are charged with this entire adjournment.
[42 chargeable days]
May 7, 2015–June 18, 2015
On May 7, 2015, the People were not ready and requested to file a statement of readiness once contact with the complaining witness had been reestablished. On May 13, 2015, the People filed a SOR. As previously noted, the court finds the SOR filed during this adjournment illusory. Accordingly, the People are charged with this entire adjournment.
[42 chargeable days]
June 18, 2015–June 29, 2015
On June 18, 2015, the People were not ready because the assigned assistant was working nights. They requested June 29, 2015, the date the assigned assistant would resume her normal schedule. The court adjourned the case to June 29, 2015 for trial. The parties agree that eleven days are chargeable.
[11 chargeable days]
June 29, 2015–July 28, 2015
On June 29, 2015, the adjourn date that the People requested the previous adjourn date, they answered not ready. The People requested June 30, 2015. In their response, the People assert that the assigned assistant became ill after working nights and was unable to come into the office. The court ordered that the People be charged until they filed a SOR. On July 6, 2015, the People filed a SOR once the assigned assistant had returned to the office and reestablished contact with the complainant. The People assert that the complaining witness reiterated her cooperation and that she was ready to proceed with the trial. People's response at 23. Notwithstanding the People's assertions, for the reasons noted above, the court finds the People's statement to be illusory.
[29 chargeable days]
July 28, 2015–September 16, 2015
On July 28, 2015, the People were not ready and requested to file a statement of readiness if and when they became ready. The People state in their response "[a]pproximately three weeks had passed since the statement of readiness was filed, and on the morning of trial, the People were unable to reach the complaining witness, and thus did not have a good faith basis to either state ready or ask for a specific date." People's response, p. 24. On July 31, 2015, the People filed a SOR. The matter was adjourned to September 16, 2015 for trial. As previously noted, the courts finds the statement of readiness filed during this adjournment illusory.
[50 chargeable days]
September 16, 2015–present
The parties agree, as does the court, that there are four chargeable days during this time period.
[4 chargeable days]
Based on the foregoing, the court finds two hundred and twenty five (225) days of chargeable time as to docket 2014BX027459 and two hundred and sixty eight (268) as to docket 2014BX002134. Defendant's motion to dismiss pursuant to CPL § 30.30(1)(b) is GRANTED. In light of the foregoing, defendant's motion to dismiss on constitutional grounds is moot.