Opinion
1451/02.
Decided on June 2, 2004.
Daniel T. Mentzer, Esq. Mentzer Higgins, LLP, NY, For Defendant.
Lawrence D. Piergrossi, Assistant District Attorney Office of the District Attorney, Bronx County, NY, For the People.
Defendant is charged by indictment with inter alia, Attempted Murder in the Second Degree (PL § 110/125.25 [1]).
Defendant, by Notice of Motion dated February 23, 2004, moved for dismissal of the indictment pursuant to CPL §§ 30.30[a] and 210.20 [1][g]. Specifically, defendant asserts that the People were not ready to proceed to trial within the statutory period. The People oppose the defendant's motion.
The People are required to be ready for trial within six months of the commencement of a criminal action in which the defendant has been charged with a felony. CPL § 30.30[a]. In this case the relevant period would be one hundred and eighty-four (184) days.
Based upon the motion papers submitted, the Court file, as well as the minutes from the respective calendar appearances, this Court makes the following findings:
The defendant was arraigned on the instant charges on March 9, 2002. At his arraignment, defendant served notice pursuant to CPL § 190.50 of his intent to testify before the Grand Jury. Bail was set and the case was adjourned to March 14, 2002 in Pt. F for Grand Jury action. The People concede this time period is includable. This five (5) day period is charged to the People.
On March 14, 2002, the Court file indicates that defense counsel waived defendant's rights pursuant to CPL § 180.80. The case was adjourned to March 20, 2002. This period constituted a delay in presentation of the case to a Grand Jury occasioned by a defendant's desire to testify. As such, it is excludable. CPL 30.30[b]; People v. Daniels, 217 AD2d 448 [1st Dept 1995], appeal dismissed 88 NY2d 917.
On March 20, 2002, the defendant requested March 26, 2002 to testify before the Grand Jury and the case was adjourned to Part B for Supreme Court arraignment. Subsequently, by letter dated March 25, 2002, defense counsel withdrew defendant's request to testify before the Grand Jury. However, by letter dated March 26, 2002, defense counsel renewed defendant's request to testify before the Grand Jury and the defendant waived his rights pursuant to CPL § 180.80 until Thursday, March 28, 2002. On March 26, 2002, the defendant testified before the Grand Jury. The People concede that a true bill was voted on that date. The six (6) day period from March 20, 2002 to March 26, 2002 is not charged to the People. This period constituted a delay in presentation of the case to a Grand Jury occasioned by a defendant's desire to testify. The People are charged seventeen (17) days — from March 26, 2002 to April 12, 2002.
The defendant was arraigned on the instant indictment on April 12, 2002 in Part B and the case was adjourned to the Motion and Conference Part for May 9, 2002. On that date, it appears that the People answered ready to proceed to trial. The defendant does not dispute this period.
On May 9, 2002, it was determined that defense counsel had filed and served his omnibus motions on April 19, 2002. The People were directed to file and serve their response by May 23, 2002. The matter was adjourned to June 13, 2002 for hearings and trial. This entire period of time is excluded as time for motion practice. CPL § 30.30[a].
The Court's decision was to be mailed before June 13, 2002.
On June 13, 2002, the People had not submitted their response to defendant's motion. The People were directed to file and serve their response by June 27, 2002. The matter was adjourned to July 18, 2002 for hearings and trial. The People filed and served their response on June 19, 2002. The Court's decision dated June 25, 2002 was mailed to all counsel on June 28, 2002, and filed on July 2, 2002. This entire period of time is excluded as time for motion practice. CPL § 30.30[a].
On July 18, 2002, defense counsel was engaged on trial in another case and requested an early September date. The case was adjourned to September 18, 2002. The People's unreadiness is not pertinent when an adjournment is occasioned by the unavailability of defense counsel. People v. Lassiter, 240 AD2d 293 [1st Dept 1997]; People v. Cambridge, 230 AD2d 649 [1st Dept 1996]. This entire period of time is excluded. CPL § 30.30[b].
On September 18, 2002, defense counsel was relieved and new counsel was assigned. This time is excludable pursuant to CPL § 30.30[b][f]. The case was adjourned to October 31, 2002.
On October 31, 2002, defense counsel was engaged on trial in another case and requested December 19, 2002. The case was adjourned to December 19, 2002. As previously stated, the People's unreadiness is not pertinent when an adjournment is occasioned by the unavailability of defense counsel. People v. Lassiter, 240 AD2d at 293; People v. Cambridge, 230 AD2d at 649. This entire period is excluded. CPL § 30.30[b].
On December 19, 2002, the case was adjourned to February 3, 2003. The People argue that this period is excludable due to holiday recess. They state that only one arraignment part was in session and that no trial parts were in session. In support of their position, they cite People v. Watson, 255 AD2d 344 (2nd Dept 1998) lv denied 92 NY2d 1040 (1998) and People v. Roman, (Supreme Court, Bronx County 2000, Bamberger, J.). In Watson, the Court held that the postreadiness delay attributable in part to the fact that the court was not in session during the Christmas and New Year's holidays not charged to the People. While this is true, it is also true that had the trial commenced, it would have been within the discretion of the trial judge to adjourn the matter until after the holidays or to have held abbreviated sessions during this period. Additionally, this Court is unaware of any directive from Court officials that no trials were to have commenced during this period. It is aware of the fact, however, that no jurors were available during this period. It is for this reason that the period from December 19, 2002 to February 3, 2003 is found to be excluded.
On February 3, 2003, the People were not ready to proceed and requested a one-week adjournment. The case was adjourned to February 25, 2003. The People concede that seven (7) days are chargeable. The People are charged seven (7) days.
On February 25, 2003, the People were not ready to proceed and requested a one-week adjournment. The case was adjourned to March 5, 2003.The People concede that seven (7) days are chargeable. The People are charged seven (7) days.
On March 5, 2003, the People were not ready to proceed and requested a two-week adjournment. The case was adjourned to March 26, 2003. The People concede that fourteen (14) days are includable. The People are charged fourteen (14) days.
On March 26, 2003, defense counsel was engaged on trial in another case. The People requested a one-week adjournment. The case was adjourned to April 4, 2003. This entire period of time is excluded. CPL § 30.30[b].
On April 4, 2003, the defense counsel was engaged on trial in another case and requested an adjournment. The case was adjourned to April 11, 2003. The defendant does not dispute this period. This entire period of time is excluded. CPL § 30.30[b].
On April 11, 2003, the defense counsel was engaged on trial in another case. The case was adjourned to April 30, 2003. The defendant does not dispute this period. This entire period of time is excluded. CPL § 30.30[b].
On April 30, 2003, the defense counsel was engaged on trial in another case. The case was adjourned to May 19, 2003. This entire period of time is excluded. CPL § 30.30[b].
On May 19, 2003, the People were not ready to proceed, and the case was adjourned to June 4, 2003. The People concede this time period is includable. The People are charged sixteen (16) days.
On June 4, 2003, the People stated that they were not ready to proceed and requested a two-week adjournment. The case was adjourned to July 7, 2003. The People concede that fourteen (14) days are chargeable. The People are charged fourteen (14) days.
On July 7, 2003, the People stated that they were not ready to proceed and requested a two-week adjournment. The case was adjourned to July 23, 2003. The People concede that fourteen (14) days are chargeable. The People are charged fourteen (14) days.
On July 23, 2003, the People announced that they were not ready to proceed and requested a two-week adjournment. The case was adjourned to August 12, 2003. The People concede that fourteen (14) days are chargeable. The People are charged fourteen (14) days.
On August 12, 2003, the People stated that they were not ready to proceed. The case was adjourned to September 3, 2003. The People concede that fourteen (14) days are chargeable. A review of the minutes of the calendar call reveals that the assistant district attorney stated that she was going on vacation the following week. When asked the duration of the vacation, she stated two (2) weeks. When the Court stated that a two (2) week adjournment would be sometime during the week of August 26, 2003, the assistant stated that neither the 26th nor the 27th (a better date for the defense) was possible since she had another case scheduled for the 24th or 25th. The assistant indicated that case would take precedent over the instant case. The case was then adjourned to September 3, 2003. It is clear from the record that the People requested the date of September 3, 2003. The People's argument that they should only be charged the two weeks during which the assistant was scheduled for vacation is without merit given the assistant's own statements on the record that while she would be returning from vacation in two (2) weeks she would not in fact be ready on the instant case in two (2) weeks. The People are charged twenty-two (22) days.
On September 3, 2003, the People stated that they were ready for hearings only. The record indicates that in both the motion and conference part as well as the hearing part, the People stated that they were not ready to proceed to trial. The hearings were completed in Part T17 on September 4, 2003. The case was adjourned to Part 40 for September 11, 2003. On September 5, 2003, the suppression court rendered its decisions denying the motions to suppress. The period of time from September 5, 2003 to September 11, 2003 is includable. The People's statements that they were not ready were in no way based upon any need by the People to prepare for trial following the rendering of a decision. Thus, CPL § 30.30[a] is inapplicable. As such, the People are charged six (6) days.
On September 11, 2003, the People were ready to proceed, however, the defense counsel was engaged on trial in another case. The case was adjourned to September 22, 2003. The defendant does not dispute this period. This entire period of time is excluded. CPL § 30.30[b].
On September 22, 2003, the People were not ready to proceed and requested a one-week adjournment. The case was adjourned to October 2, 2003. The People concede that seven (7) days are chargeable. The People are charged seven (7) days.
On October 2, 2003, the defense counsel was engaged on trial in another case. The case was adjourned to November 5, 2003. The defendant does not dispute this period. This entire period of time is excluded. CPL § 30.30[b].
On November 5, 2003, the People were not ready to proceed and requested a one-week adjournment. The case was adjourned to November 19, 2003. The People concede that seven (7) days are chargeable. The People are charged seven (7) days.
On November 19, 2003, the defendant failed to appear, and the court stayed a bench warrant to December 1, 2003. The case was adjourned to December 1, 2003. The defendant does not dispute this period. The period during which there is a stayed bench warrant is excluded from speedy trial calculation. CPL § 30.30[b][c]. As conceded by the defense, this time period is not chargeable to the People.
On December 1, 2003, the defendant appeared in court and the People were not ready to proceed. The case was adjourned to December 10, 2003. The time period immediately following the defendant's return on a bench warrant is not chargeable to the People. People v. Roberts, 236 AD2d 233 [1st Dept 1997]; People v. Muhanimac, 181 AD2d 464 [1st Dept 1992], appeal denied 79 NY2d 1052.
On December 10, 2003, the People were not ready to proceed and requested January 7, 2004 as the next court date. The case was adjourned to January 12, 2004. The People concede that twenty-eight (28) days are chargeable. The People are charged twenty-eight (28) days.
On January 12, 2004, defense counsel was on vacation and did not appear. The case was adjourned to January 22, 2004. The defendant does not dispute this period. As such, this time period is excluded. CPL § 30.30[b].
On January 21, 2004, the People were not ready to proceed and requested a one-week adjournment. The case was adjourned to February 9, 2004. The People concede that seven (7) days are chargeable. The People are charged seven (7) days.
On February 9, 2004, the People stated that they were ready to proceed to trial, however, the defense counsel was engaged on trial in another case. The case was adjourned to March 10, 2004. The defendant does not dispute this period. This entire period of time is excluded. CPL § 30.30[b].
The instant motion to dismiss was filed and served on February 26, 2004. The People filed and served their response on April 15, 2004. This entire period of time is excluded as time for motion practice. CPL § 30.30[a].
CONCLUSION
The defendant's motion to dismiss the indictment pursuant to CPL § 30.30 is granted. The Court finds that the People are charged with one hundred and eighty-five (185) days, which is in excess of the six months, (184) days, allowable under CPL § 30.30[a]. This opinion constitutes the decision and order of the Court.