Opinion
2008NY020203.
Decided October 3, 2008.
For the Defendant: Steven Banks, Esq., The Legal Aid Society (Fredric Bennett of counsel).
For the People: Robert M. Morgenthau, District Attorney, New York County (Tatiana Fernandes of counsel).
Although the filing of a valid information is a necessary precondition, it is not sufficient to discharge the People's CPL 30.30 obligation to answer ready for trial.
Since a misdemeanor complaint, which may serve as a basis for the commencement of a criminal action, may not — absent a waiver ( see CPL 170.65 [3]) — serve as a basis for prosecution of a misdemeanor charge ( see CPL 100.10 [4]), the People may not properly answer ready until the complaint has been converted to an information ( see CPL 100.10 [1]; 170.65 [1]).
Charged with two counts of aggravated harassment and one of harassment, all in the second degree, defendant moves to dismiss on the ground that his statutory right to a speedy trial has been violated. When, as here, a defendant is accused of a misdemeanor punishable by a sentence of more than three months in jail, the People must be ready for trial within 90 days of the commencement of the criminal action ( see CPL 30.30 [b]), minus any excludable periods ( see CPL 30.30; People v Cortes, 80 NY2d 201, 208).
This criminal action commenced on March 4, 2008, when defendant appeared at the courthouse in response to a desk appearance ticket ( see CPL 30.30 [b]; People v Stirrup, 91 NY2d 434, 438-439; see also CPL 150.10, 150.50 [1]). Because no accusatory instrument had yet been filed, the matter was adjourned to March 26, and then again to April 10. The 37-day period from March 4 to April 10 is chargeable to the People ( see Stirrup, 91 NY2d at 439).
On April 10, defendant was arraigned and the case adjourned to June 18, for the People to file a superseding information ( see CPL 100.50, 150.50 [2] [even if an accusatory instrument filed after the issuance of an appearance ticket is not sufficient on its face, the court may not dismiss if the available facts or evidence demonstrate that it would be possible to draw and file a sufficient instrument]). The People argued then, and argue now, that a superseding information was unnecessary since, they assert, the accusatory instrument was sufficient as drafted. The arraignment court disagreed, ordered the superseding information, and adjourned the case for that purpose. The People, however, did not answer ready for trial.
On June 18, the People filed and served a superseding information, and the case was adjourned to September 5, 2008, for trial.
Inasmuch as defendant did not seek to make pretrial motions after the People filed the superseding information, the ensuing adjournment may not be excluded for motion practice ( cf. CPL 30.30 [4] [a] [period of delay resulting from pretrial motions excludable]; see also People v Schneck, 20 Misc 3d 1146[A], 2008 NY Slip Op 51892[U] [Crim Ct, NY County 2008]).
The People argue that because the original information was jurisdictionally sufficient, the initial adjournment should be excluded. However, this court need not determine whether, as the People contend, the arraignment court erred in ordering the superseding information. Even assuming that the superseding information was unnecessary, the 69-day period from April 10 to June 18 must nevertheless be charged to the People.
Defendant objected that the original information failed to establish that New York County had geographical jurisdiction over the alleged offenses ( see CPL 20.40). The superseding information specifies a Manhattan address at which the complainant allegedly received harassing telephone calls from defendant ( see CPL 20.40 [1] [a], [2] [a]).
Conversion to an information does not stop the clock; answering ready for trial does. If the People believed that they had filed a jurisdictionally sufficient instrument as of the date of defendant's arraignment, they could have answered ready for trial at that time, or filed a certificate of readiness at any point thereafter ( see Stirrup, 91 NY2d at 440; People v Chavis, 91 NY2d 500, 506). Since they did neither, the speedy-trial clock was not tolled.
Of course, the prosecutor's declaration of readiness may be properly made only "when the People are in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness" ( People v Kendzia, 64 NY2d 331, 337 [1985]).
Simply put, all periods of unreadiness are chargeable to the People unless subject to an exclusion. Thus, even if, on June 18, the court had agreed with the People that no superseding information was needed, and consequently lifted the directive previously imposed by the arraignment court, the prior adjournment would not have become retroactively excludable ( see People v Williams, 186 Misc 2d 47, 48-49 [Crim Ct, NY County 2000]). (Of course, here the People did in fact comply with the arraignment court's order, by filing and serving a superseding information, as directed, on the adjourned date. That superseding information, too, could have been filed off-calendar, along with an accompanying statement of readiness, at any time between April 10 and June 18 [ see Stirrup, 91 NY2d at 440; Chavis, 91 NY2d at 506].)
Nor — again, assuming that the arraignment court's order was issued in error — may the initial adjournment be excluded as an "exceptional circumstance" within the meaning of CPL 30.30 (4) (g) ( see Cortes, 80 NY2d at 211-212). "Legal rulings are routine events in criminal trials. The fact that a particular ruling may be erroneous does not by itself transform that ruling into an exceptional circumstance'" ( Cortes, 80 NY2d at 211-212).
Contrary to the People's further contention, defendant, who was represented by the Legal Aid Society on both April 10 and June 18, was not during this period "without counsel through no fault of the court" (CPL 30.30 [4] [f]). Her attorney's indication at arraignment that defendant might retain private counsel (which, ultimately, she could not afford) did not render this adjournment excludable on that basis, since Legal Aid was never relieved.
On June 23, the People filed with the court and served on defense counsel a statement certifying their readiness for trial ( see Kendzia, 64 NY2d at 337). Thus, only the 5-day period from June 18 to June 23 is chargeable to the People ( see Stirrup, 91 NY2d at 440).
On September 5, the People answered ready for trial, and the case was adjourned to October 3, 2008, for the court's decision on the instant speedy-trial motion. This adjournment is excludable ( see CPL 30.30 [a]; People v Shannon, 143 AD2d 572, 573 [1st Dept 1988]).
Since 111 chargeable days have elapsed, defendant's motion to dismiss must be granted.
This opinion shall constitute the decision and order of the court.