Opinion
2017NY006287
02-28-2018
The PEOPLE of the State of New York, Plaintiff, v. Barzi TEJADA, Defendant.
Gregory G. Gomez, Esq., Gomez & Vournas LLC, 11 Park Place, Suite 914, New York, NY 10007, for the Defendant Cyrus R. Vance, Jr., District Attorney, New York County, (Sarah McAteer, Esq., of counsel), One Hogan Place, New York, NY 10013, for the People
Gregory G. Gomez, Esq., Gomez & Vournas LLC, 11 Park Place, Suite 914, New York, NY 10007, for the Defendant
Cyrus R. Vance, Jr., District Attorney, New York County, (Sarah McAteer, Esq., of counsel), One Hogan Place, New York, NY 10013, for the People
Judy H. Kim, J.On January 21, 2017, the defendant was charged with VTL § 1192(3) (Driving While Intoxicated); VTL § 1192(2–a) (Aggravated Driving While Intoxicated); VTL § 1192(2) (Driving While Intoxicated); and VTL § 1192(1) (Driving While Ability Impaired). The defendant now moves to dismiss the accusatory instrument pursuant to CPL § 30.30 and CPL § 30.20.
CPL § 30.30
CPL § 30.30(1)(b) provides that where, as here, "a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony" the defendant's motion to dismiss must be granted if the People are not ready for trial within ninety days of the commencement of the criminal action ( CPL § 30.30[1][b] ).
To be "ready for trial" the People must: (1) communicate their readiness for trial, either in open court or by filing a written notice of readiness with the court and serving it upon the defendant's attorney; and (2) be ready to proceed at the time of the declaration of readiness ( People v. Kendzia , 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 [1985] ). If the People are not ready for trial within the relevant statutory time period, the prosecution will be dismissed unless the People can demonstrate that specific adjournments should be excluded ( People v. Brown , 28 N.Y.3d 392, 403, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ).
Analysis
After reviewing the parties' submissions, the Court notes that only one adjournment is in dispute. The parties agree, and the Court concurs, that absent the disputed adjournment period there are 79 days of chargeable time pursuant to CPL § 30.30. Accordingly, the Court will confine its analysis to the disputed period, December 11, 2017 to January 17, 2018.
On February 14, 2017, defense counsel filed a Notice of Appearance listing his address as 305 Broadway, Suite 1400, New York, NY 10007. On October 1, 2017, defense counsel moved offices to 11 Park Place, Suite 914, New York, NY 10007. At the next four appearances on this matter (on October 23, November 29, December 7, and December 11) defense counsel failed to inform the Court or the People of his new address (Defendant's Motion at ¶¶ 33–34).
On December 11, 2017, the People were not ready for trial, as it was the arresting officer's regular day off, and the case was adjourned until January 17, 2018. While the People requested an adjournment date of December 14, 2017, the Court (Hon. Lyle Frank) rejected this request and ordered that the People would be charged until a Certificate of Readiness ("COR") was filed. On December 19, 2017, the People filed a COR off-calendar with the Court and served the COR upon defense counsel by mailing same to defense counsel's prior office.
Defendant argues that that the People's failure to serve the COR at defense counsel's new address renders the COR ineffective and therefore the 36 days between the December 11, 2017 appearance and January 17, 2018 appearance are chargeable to the People (Defendant's Motion at ¶¶ 33, 35–36). The flaw in defendant's argument is that a COR sent to an incorrect address may still be found effective if the People did not have actual notice that the address was incorrect prior to service of the COR (See People v. Odjody , 35 Misc. 3d 1221(A), 2012 WL 1592541 [Crim. Ct., Kings County 2012] ; see also People v. Grant , 42 Misc. 3d 1236(A), 2014 WL 1044031 [Crim. Ct., Kings County 2014] ).
In this case, the People contend that they did not have actual notice of defense counsel's change of address. Defendant argues that actual notice was given because defense counsel submitted his new address online to the Office of Court Administration and had communicated the address change to a paralegal employed by the New York County District Attorney's Office who then entered the new address into its computer system on October 22, 2017. The Court finds that these actions do not establish that the assigned ADA received actual notice of defense counsel's new address. To require an Assistant District Attorney to continually corroborate that information in a valid Notice of Appearance is up to date would impose an unreasonable burden on the People (See e.g. , People v. Grant , 42 Misc. 3d 1236(A), 2014 WL 1044031 [Crim. Ct., Kings County 2014] [requiring the People to "repeatedly check the court file to ascertain whether original counsel has remained on the case or new counsel has been retained would impose an unreasonable burden on the People"]; see also People v. Almarales , 2002 WL 31995811, at *5–6 [Sup. Ct., Kings County 2002] [same] ). This is particularly so where, as here, defense counsel has been the attorney of record for the entirety of the case and repeatedly failed to avail himself of the most direct and foolproof method to inform the People of his new address, i.e. , either stating the change on the record or filing a Notice of Appearance at one of the subsequent court appearances.
Accordingly, the Court finds that the COR sent to defense counsel's former address was served in good faith. As it is undisputed that the COR accurately reflected the People's readiness the Court finds that the COR is valid (See e.g. , People v. Vaughn , 36 A.D.3d 434, 436, 831 N.Y.S.2d 27 [1st Dept. 2007] ; People v. Odjody , 35 Misc. 3d 1221(A), 2012 WL 1592541 [Crim. Ct., Kings Cty 2012] ) and charges the People with the eight days that elapsed between the December 11, 2017 court appearance and the filing of the COR on December 19, 2017 (See People v. Stirrup , 91 N.Y.2d 434, 440, 671 N.Y.S.2d 433, 694 N.E.2d 434 [1998] ).
Accordingly, the Court concludes that 87 days are chargeable to the People pursuant to CPL § 30.30 and denies defendant's motion to dismiss the accusatory instrument pursuant to CPL § 30.30.
CPL § 30.20
Defendant also moves to dismiss the VTL § 1192(1) charge, a traffic infraction. Although CPL § 30.30 is inapplicable to traffic infractions such as VTL § 1192(1), the defendant is nevertheless entitled to a speedy trial in accordance with the United States and New York State Constitutions and CPL § 30.20 ( People v. Taranovich , 37 N.Y.2d 442, 444, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ). To determine whether dismissal is warranted pursuant to CPL § 30.20, the Court must weigh the following factors: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay ( Id. at 445–46, 373 N.Y.S.2d 79, 335 N.E.2d 303 ). Consideration of these factors militates against dismissal: although the case is thirteen months old the People are responsible for approximately three months of delay; defendant is not incarcerated; and defendant does not allege that her defense has been impaired ( People v. Polite , 16 Misc. 3d 18, 19, 842 N.Y.S.2d 670 [App. Term, 1st Dept. 2007] [18–month delay for traffic infraction due largely to court congestion and motion practice did not violate defendant's right to speedy trial).
Accordingly, it is
ORDERED that the defendant's motion to dismiss the accusatory instrument pursuant to CPL § 30.30 and CPL § 30.20, on the grounds that her statutory and constitutional right to a speedy trial has been violated, is DENIED .
This constitutes the Decision and Order of the Court.