Criminal Court of the City of New York, Kings County, June 28, 2016

Justine M. Luongo, The Legal Aid Society, Brooklyn (Sarah O'Leary of counsel), for defendant.

Kenneth P. Thompson, District Attorney, Brooklyn (Sarah Cohen of counsel), for plaintiff.

By notice of motion dated March 18, 2016, defendant moves for dismissal of the accusatory instrument, upon the ground that he has been denied his statutory right to a speedy trial (CPL 170.30 [1] [e]; 30.30 [1] [b]). By affirmation dated April 5, 2016, the People oppose defendant's motion.

The current filing is defendant's second CPL 30.30 (1) (b) motion. Defendant's initial motion to dismiss was filed on October 27, 2015. By decision and order dated [*2]December 8, 2015, another judge of this court denied defendant's motion to dismiss, finding that 55 days were chargeable to the People. That decision encompassed the time periods from defendant's initial arraignment on January 30, 2015 through December 8, 2015.^[FN1]

On April 20, 2016, this court issued an interim decision. The adjournment period from December 8, 2015 to January 19, 2016 was found to be excludable. A CPL 30.30 evidentiary hearing was ordered relative to the time periods from January 19, 2016 through March 18, 2016. The CPL 30.30 hearing was held on May 27, 2016, and continued on June 1, 2016. At the hearing, in addition to oral arguments by the defense and prosecution, the People submitted the affidavit of Police Officer Alice Kan, dated April 22, 2016.{**53 Misc 3d at 611}

Where, as here, a defendant is charged with class A misdemeanors, the People are required to be ready for trial within 90 days of the commencement of a criminal action (CPL 30.30 [1] [b]). As defendant has alleged a delay of more than the permissible time, the burden of demonstrating sufficient excludable time is on the People (People v Santos, 68 NY2d 859 [1986]; People v Berkowitz, 50 NY2d 333, 349 [1980]).

Upon review of the court file, the submissions of the parties, the official court minutes of the calendar calls from January 19, 2016, February 25, 2016, and March 15, 2016, the evidence presented at the CPL 30.30 evidentiary hearing, and the applicable law, the court makes the following findings of fact and conclusions of law.

On January 19, 2016, this docket was calendared in Trial Part 1, for a Wade/Dunaway/Huntley hearing and for trial. (United States v Wade, 388 US 218 [1967]; Dunaway v New York, 442 US 200 [1979]; People v Huntley, 15 NY2d 72 [1965].) It was the subject of three calendar calls on that date.

At the first calendar call, the prosecutor stated: "The People are ready on this. The AO [arresting officer] is on alert." (See minutes of Jan. 19, 2016 calendar call at 2, lines 8-9.) In response, the court stated: "Okay. Bring down the officer, bring down the assigned, I'll find a part." (Minutes of Jan. 19, 2016 calendar call at 2, lines 18-19.)

At the second call of the case, the assigned Assistant District Attorney (ADA) appeared in court. The ADA initially told the court she was ready for the hearing, and the court responded that it would look for an available trial part. The ADA then apologized to the court, and stated that based upon recent conversations with her police witness and the complaining witness, new information had come to light. She was now uncertain whether the complaining witness had viewed defendant's photograph prior to the noticed lineup. (Minutes of Jan. 19, 2016 calendar call at 3, lines 13-18.) The assigned ADA continued, "[i]t's not entirely clear, without me [*3]speaking to her [the complaining witness] again, whether she is talking about if she saw a photo of the Defendant online from her own research, or if some officer out there showed her a photo." (Minutes of Jan. 19, 2016 calendar call at 4, lines 13-16.) The ADA then asked the court for an opportunity to speak to the complaining witness before proceeding with the pretrial hearing:{**53 Misc 3d at 612}

"The Court: So what you are saying is that the Complaining Witness in this case may have seen a photograph of the Defendant, but that photograph was not shown to the Complaining Witness by the police.

"The ADA: That is my understanding, but it's something that I want to speak to the victim one more time just to be a hundred percent—or that I would have to speak to her again just to be a hundred percent sure on." (Minutes of Jan. 19, 2016 calendar call at 5, line 20 through 6, line 2.)

At the third calendar call, which defense counsel indicates, and the People do not dispute, occurred at the end of the court day, at approximately 4:45 p.m., the assigned ADA informed the court that she had been unable to reach the complaining witness, and that she had no further information about whether a police-arranged photographic identification procedure had taken place. At that time, the case was adjourned to February 25, 2016 for hearing and trial.

At the February 25, 2016 calendar call, the assigned ADA told the court that she had not yet learned whether the complaining witness had viewed a police-arranged photo array prior to participating in the lineup procedure. Despite this, she stated that the People were "ready to start" the pretrial hearing. (Minutes of Feb. 25, 2016 calendar call at 3, lines 12-19.) The court adjourned the case, after having opined that "[i]t doesn't make sense to me to start one part of the hearing and then adjourn it for next week, depending on what the answer is to the questions that you were tracking down." (Minutes of Feb. 25, 2016 calendar call at 2, lines 13-16.) No hearings were commenced and the case was adjourned to March 3, 2016 for hearing and trial.^[FN2]

The parties agree that on March 3, 2016, the assigned ADA was engaged on trial on another case, and the People requested a seven-day adjournment. The case was adjourned to March 15, 2016, for hearing and trial.{**53 Misc 3d at 613}

Off-calendar, on March 10, 2016, the assigned ADA learned for the first time that the complaining witness had actually been shown a photo array by a police officer on January 16, 2015, approximately two weeks prior to the lineup, and had identified the defendant. That same day, the ADA turned over a copy of the photo array and related paperwork to defense counsel.

On March 15, 2016, the case was called before this court for hearing and trial. The People had only one witness available for the pretrial hearing, the police officer who had conducted the photo array. At the calendar call, the assigned ADA stated: "We are ready to start the first part of the Wade Hearing." (Minutes of Mar. 15, 2016 calendar call at 2, lines 11-12.) The ADA indicated that the case detective, a necessary witness to complete the hearing, had been called out-of-state on an assignment the day before, and would be back later in the week. When again asked by this court if the People were ready to go right to trial, the ADA responded that her "witnesses need about one days advanced [sic] notice in order to get off from work." When this court responded, "You're either announcing ready for trial or you're not," the ADA replied: "We're ready to start the hearings." (Minutes of Mar. 15, 2016 calendar call at 2, line 22 through 3, line 2.) The affidavit of Police Officer Alice Kan, submitted by the People at the CPL 30.30 hearing, indicates that Officer Kan, who was the officer who conducted the lineup, was out-of-state on another case from March 14, 2016 through March 17, 2016. In her affidavit, Officer Kan states she would not have been available to give testimony in this case until March 18, 2016.

On March 18, 2016, the People answered ready for trial. Defense counsel filed this speedy trial motion, and the case was adjourned for the court's decision.

For the reasons detailed herein, all of the time from January 19, 2016 to March 10, 2016, a period of 51 days, is charged to the People. Additionally, the time from March 15, 2016 to March 18, 2016, a period of three days, is charged to the People.

January 19, 2016 to February 25, 2016 (37 days charged to the People; total chargeable time is 92 days).

[1] The People's January 19, 2016 statement of readiness was illusory. It is clear from the totality of the circumstances, the People were still investigating their case on that date. The{**53 Misc 3d at 614} minutes of the three January 19th calendar calls reveal that, despite uttering the words "ready for trial," it was the People who requested the adjournment so they could look into the possibility that a police officer had shown the complaining witness a photo array. The adjournment was not the product of a request by, or consent of, the defense, nor was it attributable to court congestion. Instead, the People informed the court that they had to speak to the complaining witness again before proceeding.

In People v Kendzia (64 NY2d 331, 337 [1985]), the Court of Appeals set forth two necessary elements for a statement of readiness to be valid. First, the People must communicate their readiness in open court, or by way of written notice to both defense counsel and the appropriate court clerk, to be placed in the original record. Second, the People's communication of readiness must be made in good faith and reflect a present state of readiness. The second element requires that the People have removed all legal impediments to the commencement of the People's case. (People v England, 84 NY2d 1, 5 [1994].) A statement of readiness contemplates present readiness, not a prediction or expectation of future readiness. (People v Kendzia, 64 NY2d at 337.) In this case, on January 19, 2016, the People failed to satisfy the second element. The People, who were still investigating the identification procedures that [*5]would need to be addressed at the pretrial Wade hearing, had failed to do all that was required of them to bring the case to a point where it could be tried.

In People v Sibblies (22 NY3d 1174 [2014]), the Court of Appeals discussed the validity of an off-calendar statement of readiness which was followed on the next court date by the People's admission that they were continuing to investigate and were awaiting the medical records of an injured police officer. The Court found the People's statement of readiness was rendered illusory by their subsequent admission that they were still investigating the case. In the concurring opinion of Judge Graffeo, the Court reasoned that the People's statement of readiness failed to satisfy the second prong of the Kendzia test because the People were not actually ready to proceed at the time they had declared their readiness. "It is well settled that, under the second prong, 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 NY2d 1, 4 [1994])." (Sibblies at 1180.)

{**53 Misc 3d at 615}Likewise, in People v Bonilla (94 AD3d 633 [1st Dept 2012]), the People's initial statement of readiness was found to have been illusory. The Court determined that, when viewed in light of the surrounding circumstances, the People's subsequent requests for adjournments, asserting a need for further investigation, effectively conceded that the prior statement of readiness had been inaccurate. While noting that a statement of readiness "is presumed to be accurate and truthful," (People v Acosta, 249 AD2d 161, 161 [1998], lv denied 92 NY2d 892 [1998]), Bonilla concluded that the record rebutted that presumption.

In this case, the People's initial statement of readiness on January 19, 2016 was rebutted by their admission that they needed additional time for their investigation. The fact that the People's statement of readiness in the current matter was made in court, as opposed to off-calendar, does not alter the legal analysis. The rationale in People v Sibblies applies both to the filing and service of certificates of readiness off-calendar, as well as to in-court statements of readiness. (See People v McCoy, 44 Misc 3d 1205[A], 2014 NY Slip Op 51024[U] [Crim Ct, Bronx County 2014]; People v Kelly, 44 Misc 3d 1211[A], 2014 NY Slip Op 51088[U] [Crim Ct, Kings County 2014]; People v Jackson, 46 Misc 3d 1214[A], 2015 NY Slip Op 50057[U] [Crim Ct, Kings County 2015].) Consequently, the People's January 19, 2016 statement of readiness was illusory.

Even if the People had not been the party who asked the court for the adjournment, any claim of readiness would still be rejected. The Criminal Procedure Law expressly provides that a trial cannot commence until pretrial suppression hearings have been concluded. Specifically, CPL 710.40 (3) states that "[w]hen the motion [to suppress evidence] is made before trial, the trial may not be commenced until determination of the motion." (See People v Lloyd, 141 AD2d 669 [2d Dept 1988], lv denied 73 NY2d 787 [1988] [finding CPL 710.40 (3) was violated when the defense was compelled to commence jury selection before determination of the Wade motion]; see also People v Blowe, 130 AD2d 668, 670 [2d Dept 1987].) Here, immediately after stating they were ready for the Wade/Huntley/Dunaway hearing, the People admitted that they did not know whether a police-arranged identification procedure had preceded the noticed lineup. Thus, the People's failure to be ready to complete the pretrial hearing until March 10, 2016, when they learned that the complaining witness [*6]had viewed{**53 Misc 3d at 616} defendant's picture in a photo array, was a direct impediment to the commencement of trial.

Contrary to the People's argument, their failure to determine whether the police had shown a photo array to the complaining witness is not the equivalent of a Rosario or discovery violation. (Cf. People v Anderson, 66 NY2d 529 [1985].) Instead, the People's lack of knowledge about the photo-array procedure, and the adjournment necessitated for the People to carry out an investigation, directly implicated the People's own readiness. The trial could not go forward until the Wade/Dunaway/Huntley motion was determined. The nature of the delay in this case is akin to that in People v McKenna (76 NY2d 59 [1990]). In McKenna, the People's failure to provide the trial court with the grand jury minutes that were necessary for determination of defendant's motion to dismiss for legal insufficiency was a direct impediment to the commencement of trial. In McKenna, the Court of Appeals held that

"because the trial could simply not go forward until the CPL 210.30 motion was decided, the People's dilatory conduct in failing to provide the minutes necessary to that decision was a direct, and virtually insurmountable, impediment to the trial's very commencement . . .

"As such, the prosecutorial failure here must be deemed to be one having a direct bearing on the People's readiness, since the People can hardly claim to be 'ready' when they have not done all that is required of them to bring the case to the point where it may be tried." (Id. at 64.)

As the Court of Appeals has made clear, through its recent rulings in People v Marshall (26 NY3d 495 [2015]) and People v Holley (26 NY3d 514 [2015]), it is the People's obligation to advise the defense of all police-arranged viewings of the defendant's photograph by a potential trial witness, even one initiated by a prosecutor in preparing a witness for trial. It does not matter whether the People can admit, or intend to admit, the photograph at trial. Once a police officer, or a prosecutor, shows defendant's photograph to a witness, the defendant is entitled to a Wade hearing. The trial cannot commence until a ruling is obtained on whether there was undue suggestiveness at the photo-identification procedure, thereby tainting the anticipated in-court identification.{**53 Misc 3d at 617}

The People's attempt to cast the issue herein as one of late CPL 710.30 (1) (b) notice is misguided.^[FN3] The adequacy of the People's CPL 710.30 (1) (b) notice is not at [*7]issue here. (See People v Grajales, 8 NY3d 861 [2007] [statutory notice was adequate where notice of point-out by witness was timely given, but notice of photographic identification was not included]; cf. People v Nolasco, 70 AD3d 972 [2d Dept 2010] [preclusion should have been granted for People's failure to give any form of CPL 710.30 (1) (b) notice with regard to a witness who made an in-court identification after having previously viewed defendant's photograph on a photo manager computer].) The defense has never moved for preclusion for failure to give CPL 710.30 (1) (b) notice within 15 days after arraignment. Instead, it is the potential suggestiveness of the photo-array procedure that was required to be explored at the ordered Wade hearing. As the Court of Appeals explained in People v Marshall (26 NY3d 495, 507 n 1 [2015]):

"The People also claim that the court was not required to determine the suggestiveness of the photograph display because the People did not intend to, and, in fact, did not, introduce the photograph as part of the prosecution's case-in-chief. While true, this does not alter our analysis because the complainant made an in-court identification during the prosecutor's direct examination, and our case law is clear that before an in-court identification may be admitted the People must establish that it was not tainted by a suggestive and improper prior identification procedure (see Rahming, 26 NY2d at 416). Thus, at a minimum,{**53 Misc 3d at 618} defendant was entitled to a Wade hearing on the suggestiveness of the photograph display as it pertains to complainant's in-court identification of defendant as the assailant."

Moreover, it is the People who bear the initial burden to establish a lack of undue suggestiveness with regard to the photographic identification at the Wade hearing. (People v Marshall, 26 NY3d at 506.) Thus, the People can hardly claim to be ready for a Wade hearing when they are still attempting to ascertain whether a photo-identification occurred, and if so, to learn whether the photographs were preserved, and if the photos were not preserved, to determine the circumstances surrounding the photographic viewing. It is now well established that it is the People's duty to preserve photographs which have been shown to a witness, regardless of the format used for the photographic viewing. (People v Holley, 26 NY3d 514 [2015].) If, at the Wade hearing, the People fail to produce the photographs viewed by a witness, there arises a [*8]rebuttable presumption that the procedure was unduly suggestive. The People's obligation to preserve photo displays "is not creating evidence for the benefit of the defendant, but preserving evidence as required by the law protecting the defendant's right to a fair trial." (Id. at 524.)

It is undisputed that between January 19, 2016 and March 10, 2016, the assigned ADA made good faith and diligent efforts to discover whether a photo-identification procedure had been conducted. However, the fact remains that the reason the hearing and trial did not proceed during this time period was because the People were still investigating whether, and under what circumstances, the complaining witness had previously viewed a photograph of the defendant.

The evidence at the CPL 30.30 hearing revealed that the detective who had prepared the photo array, and had shown it to the complaining witness, had not followed proper police procedures to memorialize the results. As a consequence, the photo-identification was not reflected in a police report, and was not entered into the appropriate police database, thereby impeding the prosecutor's efforts to locate it. Regardless, it is well established that documents in the possession of a police department are within the People's actual or constructive possession, custody or control. (People v Ranghelle, 69 NY2d 56 [1986]; People v Washington, 196 AD2d 346, 348 [2d Dept 1994], affd 86 NY2d 189 [1995].) Specifically, a photo array which has{**53 Misc 3d at 619} been shown to an identifying witness is deemed to be within the possession of the prosecution, and it is their duty to preserve it. (People v Holley, 26 NY3d at 523.) Therefore, the detective's failure to properly prepare and file his paperwork does not excuse the prosecution's delay.

Accordingly, the time from January 19, 2016 to February 25, 2016, a period of 37 days, is charged to the People.

February 25, 2016 to March 3, 2016 (seven days charged to the People; total chargeable time is 99 days).

[2] On February 25, 2016, the People indicated they could start a portion of the pretrial hearing, however, the People were still investigating whether a photo-array procedure had been conducted. For the reasons previously set forth in the analysis of the January 19, 2016 adjournment, the People's claim of readiness as to this adjournment was also illusory. Despite their pronouncement, the People were still investigating the photo-identification procedure. (Sibblies.)

Moreover, readiness to start a portion of the pretrial hearing is not readiness to proceed with a hearing, and in no way does it demonstrate a present readiness to proceed to trial. (People v Chavis, 91 NY2d 500, 505-506 [1998].) In People v Simpkins (193 Misc 2d 148 [Crim Ct, Bronx County 2001], affd 193 Misc 2d 447 [App Term, 1st Dept 2002], lv denied 99 NY2d 585 [2003]), the People's announcement that they were ready to start a portion of the scheduled pretrial hearing was not a statement of readiness for the Mapp/Huntley/Dunaway hearing. In Simpkins, on the adjourn date set for the hearing, the People only answered ready for the Mapp portion of the pretrial hearing. The trial court refused to conduct a bifurcated hearing. In charging the People with the resulting adjournment, the trial court rejected the People's claim that they were only required to announce their readiness to commence the suppression hearing in [*9]order to avoid being charged with the adjournment. The Appellate Term, in affirming the trial court, stated:

"We agree, essentially for reasons stated by Criminal Court, that the People failed to comply with the speedy trial requirements of CPL 30.30. Each of the post readiness adjournment periods now in dispute was properly charged to the People, since the delays resulted solely from the People's repeated and unexplained unreadiness to proceed meaningfully at the combined suppression hearing{**53 Misc 3d at 620} twice scheduled upon ample notice. '[B]ecause the trial could simply not go forward until [defendant's omnibus] motion was decided, the People's dilatory conduct in [connection with the hearing] necessary to that decision was a direct, and virtually insurmountable, impediment to the trial's very commencement' (People v McKenna, 76 NY2d 59, 64)" (193 Misc 2d at 448).

In People v Aquino (6 Misc 3d 25 [App Term, 1st Dept 2004], lv denied 4 NY3d 796 [2005]), the Appellate Term distinguished delays in complying with discovery obligations from delays which actually impair the People's ability to proceed with scheduled suppression hearings. Reversing dismissal upon CPL 30.30 grounds, the court found that the People's post-readiness delay in producing a videotape, which was not the subject of defendant's suppression motion, did not impact the People's ability to proceed meaningfully at the scheduled suppression hearing. Thus, Aquino concluded that unlike the People's delay in Simpkins, supra, the time was not chargeable to the People, as other corrective measures were available. (People v Anderson, 66 NY2d at 542.)

In the instant case, the People's indication that they could start the pretrial hearing, without being able to complete it, was not readiness for the hearing or for trial. (See People v Murray, 21 Misc 3d 1134[A], 2008 NY Slip Op 52344[U], *3 [Sup Ct, Bronx County 2008] ["At most, (the People) were able to start a hearing, but not complete it. That is, of course, tantamount to not being ready for trial at all"].)

Accordingly, these seven days are charged to the People.

March 3, 2016 to March 15, 2016 (seven days charged to the People; total chargeable time is 106 days).

On March 3, 2016, the People were not ready and requested a seven-day adjournment. The People concede they are chargeable with the seven days from March 3, 2016 to March 10, 2016.^[FN4]

{**53 Misc 3d at 621}March 15, 2016 to March 18, 2016 (three days charged to the People; total chargeable time is 109 days).

On March 15, 2016, despite the case being calendared for hearing and trial, the People were only ready to start the Wade portion of the hearing. At no time did the People indicate they were ready for trial. Readiness to start a pretrial hearing is not readiness for trial. (See discussion, supra.) Additionally, the affidavit of Police Officer Kan, a necessary prosecution witness for the pretrial hearing, makes clear that she would not have been available to testify at the pretrial hearing or at trial until March 18, 2016. Accordingly, these three days are charged to the People.

By this decision and order, the People are charged with 54 days of includable time: the 37 days from January 19, 2016 to February 25, 2016; seven days from February 25, 2016 to March 3, 2016; seven days from March 3, 2016 to March 10, 2016; and three days from March 15, 2016 to March 18, 2016. When added to the 55 days previously charged to the People, the total time charged to the People is 109 days.

Accordingly, the defendant's motion to dismiss, pursuant to CPL 30.30 (1) (b), is granted.