Opinion
2014QN044603
08-15-2016
The People of the State of New YorK, v. Hunter Segree, Defendant The People of the State of New York, v. Nico G Calvacca Burbon, Defendant
For the People: ADA Alana B. Weber, Esq. For the defendant, Segree: Melody Glover, Esq. For the defendant, Calvacca: Darryl Fox, Esq.
For the People: ADA Alana B. Weber, Esq. For the defendant, Segree: Melody Glover, Esq. For the defendant, Calvacca: Darryl Fox, Esq. Althea E. Drysdale, J.
The defendants, Hunter Segree and Nico Calvacca Burbon were originally charged, separately, with the D felony of assault in the second degree (Penal Law § 120.05 [1]), two counts of the A misdemeanor of assault in the third degree (Penal Law § 120.00 [1]), and three counts of the violation of harassment in the second degree (Penal Law § 240.26 [1]). The People subsequently dismissed the felony and retained the other charges.
The defendant, Hunter Segree moves to dismiss the criminal action on the ground that he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law §§ 170.30 (1) (e) and 30.30 (1) (a), to which co-defendant Nico Calvacca Burbon joins. At the time of this decision, the People have not filed opposition to the defendant's motion, which was due on July 25, 2016.
Based on the defendants' submission and my review of the record, the defendants' motion is granted.
A criminal action is commenced by the filing of an accusatory instrument (Criminal Procedure Law §1.20 [17]; People v Lomax, 50 NY2d 351 [1980]). Except for periods of excludable delay (see Criminal Procedure Law § 30.30 [4]), the proscribed period continues to run until the People state their present readiness for trial (People v Kendzia, 64 NY2d 331 [1985]). The People communicate their readiness for trial by either stating that they are ready for trial in open court, or by serving and filing a certificate of readiness to, both, defense counsel and the court clerk (People v Sibblies, 22 NY3d 1174, 1180 [2014]; People v Kendzia, 64 NY2d 331, 337 [1985]). And, the People must actually be ready to proceed to trial at the time they state their readiness for trial (People v Sibblies, 22 NY3d 1174, 1180 [2014]; People v Chavis, 91 NY2d 500, 505 [1998]).
The defendant has the initial burden of showing the existence of unexcused delay greater than the time allowed by Criminal Procedure Law § 30.30 (1) (People v Barden, 2016 NY Slip Op 04659 [2016]). Once the defendant meets his burden, the burden then shifts to the People to show that they are entitled to exclude certain adjournments as prescribed by Criminal Procedure Law § 30.30 (4) (see People v Robinson, 67 AD3d 1042 [3d Dept 2009]). Further, it is the People's burden to make sure the record is sufficiently clear as to who is chargeable for an adjournment (id. at 1044).
When, as here, the action begins as a felony complaint and is later reduced to a misdemeanor information, a recalculation of the readiness time period may be warranted depending on the amount of chargeable time that has already elapsed in the prosecution measured by the most serious charge in the new misdemeanor information (People v Cooper, 98 NY2d 541, 544 [2002]). Criminal Procedure Law § 30.30 (5) (c), in relevant part, provides that
"where a criminal action is commenced by the filing of a felony complaint, and thereafter, in the course of the same criminal action either the felony complaint is replaced with or converted to an information, prosecutor's information or misdemeanor complaint . . . the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument however, [] when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable . . ." (see also People v Cooper, 98 NY2d 541 [2002])
Simply stated, if the aggregate amount of time charged to the People with regards to the felony complaint plus the Criminal Procedure Law § 30.30 (1) readiness period associated with the most serious charge in the new accusatory instrument is greater than, in this case, six months (184 days), then the applicable Criminal Procedure Law § 30.30 (1) period remains six months measured from when the defendant was arraigned (People v Cooper, 98 NY2d 541, n1 [2002]). As such, pursuant to Criminal Procedure Law § 30.30 (5) (c), the original six-month period (184 days) calculated from when this criminal action commenced on July 31, 2014, with the felony charge, remains applicable (Criminal Procedure Law § 30.30 [1] [a])
The action commenced on July 31, 2014, when the defendant was arraigned on a felony complaint. The defendant concedes that the adjournments from July 31, 2014 to August 13, 2014, and August 13, 2014 to October 1, 2014 are consent adjournments for possible disposition. 0 days are charged to the People (Criminal Procedure Law § 30.30 [4] [b]; and People v Rivas, 78 AD3d 739, 739 [2d Dept 2010] [the defendant's consent to adjournment is excludable for the purpose of speedy trial calculation]).
On October 1, 2014, the People conveyed an offer to the defendant, which he rejected. The case was adjourned to December 3, 2014 for grand jury action. The defendant concedes that he consented to and waived 30.30 time, chargeable to the People, until October 15, 2014. And, once again, waived 30.30 time, chargeable to the People, for the periods of October 27, 2014 until December 17, 2014. Thus, our calculation for this period only pertains to the period from October 15, 2014 through October 27, 2014. 12 days are included (People v England, 84 NY2d 1, 3-4 [1994] [the People could not be ready for trial without filing a valid indictment]).
On December 3, 2014, there was no grand jury action. The case was adjourned to January 12, 2015 for grand jury action. As the defendant concedes that there was a valid waiver of 30.30 time chargeable to the People, in effect, until December 17, 2014, the People are only charged from the period of December 17, 2014 until January 12, 2015. 26 days are included (id.). On January 12, 2015, there was no grand jury action. The case was adjourned to March 23, 2015 for grand jury action. 70 days are included (id.).
On March 23, 2015, the People dismissed the charge of assault in the second degree (Penal Law § 120.05 [1]). The People served and filed the supporting deposition of both the complainants. The People announced that they were ready for trial. The presiding judge deemed the accusatory instrument an information. The case was adjourned to April 4, 2015 for open file discovery. 0 days are included, as the defendant concedes (Criminal Procedure Law § 30.30 [4] [a] [period for discovery excluded]; People v Caussade, 162 AD2d 4, 8 [2d Dept 1990] [People need a valid accusatory instrument upon which the defendant may be brought to trial before they may be ready for trial]; and People v Dorilas, 19 Misc 3d 75, 76-7 [App Term, 2d Dept 2008] [period of adjournment for discovery by stipulation and pretrial discovery excludable]).
On April 4, 2015, the case was adjourned to June 11, 2015 for hearings. The People were ordered to serve and file discovery off-calendar. 0 days are included, as the defendant concedes (Criminal Procedure Law § 30.30 [4] [a] [period for discovery excluded], and People v Dorilas, 19 Misc 3d 75, 76-7 [App Term, 2d Dept 2008] [period of adjournment for discovery by stipulation and pretrial discovery excludable]).
On June 11, 2015, the defendant was not in court because he had started a new job and could not miss work. The case was adjourned to August 11, 2015 for possible disposition or hearing. 0 days are included, as the defendant concedes (Criminal Procedure Law § 30.30 [4] [c] [i] [period of delay resulting from the absence of the defendant is excludable]).
On August 11, 2015, the People were not ready for hearings because the arresting officer was on maternity leave. It is presumed that the People argued that the arresting officer's inability to testify constitutes an exceptional circumstance as provided by Criminal Procedure Law § 30.30 (4) (g) (i).
Under Criminal Procedure Law § 30.30 (4) (g) (i), the court must exclude "the period of delay resulting from a continuance granted at the request of a district attorney if the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period". To invoke excludable time because of "exceptional circumstances," the People must demonstrate "credible, vigorous activity" in pursuing their investigation (People v Washington, 43 NY2d 772, 774 [1977]). The People must show: (1) that the witness is material to their case; (2) that they exercised due diligence to obtain the witness's testimony; and (3) that they have reasonable grounds to believe the witness will be available in a reasonable period (see Criminal Procedure Law § 30.30 [4] [g], and People v Womack, 229 AD2d 304, 304 [1st Dept 1996] [arresting officer on maternity leave was a material witness to establish evidence's chain of custody]). Here, neither the defendant nor the People have provided the court with the minutes from this court proceeding. The minutes would have provided the court with clarity and information on whether the People truly had an exceptional circumstance as delineated in People v Womack, 229 AD2d 304 [1st Dept 1996].
In Womack, the court found that the People met their burden to establish that the arresting officer was a material witness, that she would be available soon, and that they had diligently attempted to produce her at trial (id. at 304). None of this information is available to the court in rendering this decision. Absent such information, the court fails to find any evidence that the People diligently tried to secure the arresting officer as a witness (see People v Thomas, 210 AD2d 736, 737-38 [3d Dept 1994] [no evidence as to what effort prosecutor made to procure attendance of unavailable witness], People v Boyd, 189 AD2d 433 [1st Dept 1993] [People's burden to demonstrate due diligence], People v Silvestri, 48 Misc 3d 810, 815 [Crim Ct, New York County 2015] [the People submitted medical records and police personnel records indicating that the arresting officer was on maternity and childcare leave]). Accordingly, 65 days are included.
The defendant concedes that the adjournment periods from October 15, 2015 to November 3, 2015, November 3, 2015 to December 10, 2015, December 10, 2015 to February 1, 2016, and February 1, 2016 to February 23, 2016 are not chargeable to the People. 0 days are included, as the defendant concedes.
On February 23, 2016, a Dunaway/Huntley/Wade hearing commenced. The case was adjourned to March 23, 2016 to continue the hearing because the People wanted to call Detective Buxby as a witness. 0 days are included, as the defendant concedes.
On March 23, 2016, the People were not ready for the hearing. The case was adjourned to April 26, 2016 to continue the hearing. 34 days are included.
On April 26, 2016, the People, again, were not ready for the hearing. The case was adjourned to May 25, 2016 to continue the hearing. 29 days are included.
On May 25, 2016, the People were ready for the hearing and the hearing was completed. Inexplicably, the People did not call Detective Buxby to the stand but instead called Detective Davneiro as a witness. The defendant raised a speedy trial issue pursuant to Criminal Procedure Law § 30.30. The court set a motion schedule for the defendant to serve and file his motion by June 25, 2016 with the People to serve and file opposition on July 25, 2016. 0 days are included (Criminal Procedure Law § 30.30 [4] [a] [time for pretrial motions excludable]).
Based on this analysis, the total chargeable time is 270 days. Because this exceeds the 184-day allotment (see CPL 30.30 [1] [a]), the defendant's motion to dismiss on speedy-trial grounds, pursuant to CPL 170.30 (1) (e) and 30.30 (1) (a), is granted.
The foregoing constitutes the decision and order of the Court. Dated: August 15, 2016 Queens, New York _____________________ Althea E. Drysdale, J.C.C.