People v Barnaby (2007 NY Slip Op 50404(U))

People v Barnaby

2007 NY Slip Op 50404(U) [14 Misc 3d 1237(A)]

Decided on March 6, 2007

Criminal Court, Kings County

Nadelson, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Defendant moves to dismiss this action alleging that more than 90 days have elapsed since Defendant was arraigned and the People are not ready for trial. The court denies this motion.

Both sides agree that 36 days are chargeable to the People between the time Defendant was arraigned and the complaint was converted to an information. Defendant acknowledges that on October 30, 2006, the People announced "ready." However, Defendant was not ready because the People had previously indicated that they might file a Molineux motion.

A Molineux motion is one in which the People seek to offer identification testimony that is limited to proof of another crime to establish one or more elements of the crime charged. People v. Molineux, 168 NY2d 264 (1901); People v. Kross, 191 Misc 2d 714, 744 N.Y.S. 2d 834 (Queens County Crim. Ct. 2002). Defendant asserts that it would be prejudicial if such motion were made before the trier of fact and therefore Defendant was waiting to see if that motion was in fact filed.

It has been determined that after the People announce "ready for trial," a criminal action should not be dismissed if the failure of the People to proceed to trial has no bearing on the People's readiness. This is so even if the delay hinders a defendant's ability to proceed to trial. People v. Anderson, 66 NY2d 529 (1985).

In People v. Saunders, 2005 NY Slip Op. 25133 (Kings County Crim. Ct.), the court declined to charge the People with the time they took to produce search warrant materials to the defendant. The court reasoned that even though such delay may hinder the defense it did not affect the People's ability to proceed to trial. This was held even though the People could not have used those search warrant materials prior to handing them over to the defense. Similarly, in [*2]People v. Caussade, 162 AD2d 4 (2d Dept. 1990), the Appellate Division stated that the People's failure to comply with discovery requests does not affect the prosecution's readiness for trial. The People may simply be inadequately prepared to prevail at the trial.

The People's failure to file a Molineux motion in no way affects their ability to proceed to trial. Further, despite Defendant's assertions of undue prejudice if the trier of fact hears the Molineux motion, such motions are typically argued before the judge who will ultimately decide the case. Consequently, Defendant's motion is denied.