People v Rodriguez (2007 NY Slip Op 51156(U))

People v Rodriguez

2007 NY Slip Op 51156(U) [15 Misc 3d 1146(A)]

Decided on May 17, 2007

Criminal Court Of The City Of New York, Kings County

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This opinion is uncorrected and will not be published in the printed Official Reports.

The defendant moves to dismiss the charges against him for failure of the People to have afforded him a speedy trial pursuant to CPL 30.30. The defendant contends that since the People have never answered ready this case must be dismissed as they have exceeded their 90 day [sic] trial readiness requirement. The People oppose the motion.

Once the defendant alleges that the People have exceeded their statutory speedy trial time, the People must demonstrate that the disputed adjournments are excludable by reference to a statutory provision. People v. Berkowitz, 50 NY2d 333 (1980). The prosecution also bears the burden of clarifying, on the record, the basis for an adjournment so that the motion court can determine to whom the adjournment should be charged. People v. Cortes, 80 NY2d 201, 215-216 (1992); People v. Liotta, 79 NY2d 841 (1992); People v. Berkowitz, supra.

On June 14, 2006, the defendant, represented by an attorney from the Legal Aid Society, was arraigned on a felony complaint charging him with two counts of Criminal Contempt in the First Degree [PL §215.51(b)(iii) and (b)(v)], Criminal Contempt in the Second Degree [PL §215.50(3)], Harassment in the Second Degree [PL §240.26(1)], and two counts of Aggravated Harassment in the Second Degree [PL §240.30(1)(a) and (1)(b)]. This commenced the running of the People's six month trial readiness period, which in this case totals 183 days. CPL 30.30(1)(a). The matter was adjourned to June 19, 2005 for Grand Jury action. This five day period of delay is chargeable to the People.

On June 19, 2006, the case was sua sponte adjourned by the court to July 12, 2006 for the defendant to retain private counsel. The People do not argue that this adjournment is excludable pursuant to CPL 30.30(4)(f); had they done so, that argument would fail. See, People v. Masellis, 140 Misc 2d 1024 (Crim Ct, NY County 1988). Thus, this 23 day period of delay is chargeable to the People.

On July 12, 2006, the court was informed that the defendant had retained an attorney. The case was marked final against the People for Grand Jury action and adjourned to August 23, 2006. This 42 day period of delay is chargeable to the People.

On August 23, 2006, there was no Grand Jury action and no motion to reduce. The matter was adjourned to September 28, 2006 for Grand Jury action. This 36 day period of delay is chargeable to the People.

On September 28, 2006, the charges were reduced with the dismissal of the two counts of Criminal Contempt in the First Degree, leaving as the top count a class "A" misdemeanor. The People also filed and served a corroborating affidavit, thereby converting all counts except for [*2]Criminal Contempt in the Second Degree, for which they still needed a certified copy of the underlying order of protection. The People announced ready on the converted charges. The announcement of partial readiness tolled the running of the speedy trial clock as to those counts. People v. Kendzia, 64 NY2d 331 (1985); People v. Gray, 7 Misc 3d 127A (App Term, 2d Dept 2004), lv denied, 4 NY3d 799 (2005); People v. Castro, 2001 NY Slip Op. 50084(U) (App Term, 1st Dept. 2001); People v. Minor, 144 Misc 2d 846 (App Term, 2d Dept 1989), lv denied, 74 NY2d 666 (1989). The remainder of the adjournments as to those charges will be reviewed in a post-readiness context. People v. Anderson, 66 NY2d 529 (1985).

Apparently both the People and defense counsel believe that after reduction the applicable speedy trial time changed to 90 days. Both are incorrect. CPL 30.30(5)(c) states that the People must be ready for trial either six months from the filing of the original felony complaint or 90 days from reduction, whichever is shorter. See generally, People v. Cooper, 98 NY2d 541 (2002). In the instant case, the People had 77 days left on the six month speedy trial clock, compared to 90 days from reduction. CPL 30.30(5)(c); CPL 30.30(1)(a); see generally, People v. Sommersell, 166 Misc 2d 774 (App Term, 1st Dept 1995), lv denied, 88 NY2d 886 (1996). Therefore, the six month (or 183 day) speedy trial limit applies.

The total time charged to the People on all of the charges prior to reduction is 106 days.

The case was adjourned to November 6, 2006 for discovery by stipulation on the converted counts (which is excludable) and for conversion of the unconverted Criminal Contempt count (which is chargeable). The court file contains a Statement of Trial Readiness dated October 23, 2006, attached to a certified copy of the underlying order of protection. These documents were filed with the court on the same date. However, the People later conceded that despite signing an affidavit of mailing, the assistant district attorney had not actually mailed them to defense counsel. They were admittedly not served on defendant until the court appearance of November 6. Therefore, the Criminal Contempt charge remained unconverted until that time and the People are charged with 39 days of delay as to that count.

On November 6, 2006, the People served and filed discovery by stipulation. The matter was adjourned to December 12, 2006 for trial. This adjournment is excludable as the People are entitled to a reasonable period of time to prepare for trial. See, CPL 30.30(4)(a); People v. Reed, 19 AD3d 312, 315 (1st Dept 2005), lv denied, 5 NY3d 832 (2005); People v. Green, 90 AD2d 705 (1st Dept. 1982), lv denied, 58 NY2d 784 (1982).

On December 12, 2006, the People were not ready for trial and requested a two week adjournment. The matter was adjourned to January 25, 2007 for trial. The People are charged with 14 days on all of the counts. See, People ex rel Sykes v. Mitchell, 184 AD2d 466 (1st Dept 1992)(in post-readiness context the People are only charged with the adjournment they request); see also, People v. Brooks, 190 Misc 2d 247, 251 (App Term, 1st Dept 2001).

On January 25, 2007, defense counsel filed a 30.30 motion. The court directed the People to file their response by February 21, 2007 and the case was adjourned to March 12, 2007 for decision. This adjournment would normally be fully excludable under CPL 30.30(4)(a). However, on March 12th, the People admitted that they had not answered the motion and, for the first time, requested additional time to reply. The court granted their request to file a late response, but advised the People that they would be charged from February 21, 2007 until they filed their answer. The matter was adjourned to April 9, 2007 for decision. The People are [*3]charged with 57 days of delay on all of the counts as they were again delinquent and did not file their response until the April 9th adjourn date. This is clearly "... a period of unreasonable delay in excess of the ... deadline ... previously set by the court...." People v. Gonzalez, 266 AD2d 562, 563 (2d Dept 1999), lv denied, 94 NY2d 920 (2000).

On April 9, 2007, upon receipt of the People's answer, the matter was adjourned to May 17, 2007 for decision. This adjournment is excludable. CPL 30.30(4)(a).

To date, the People are charged with 177 days of delay on the Harassment and Aggravated Harassment counts. The defendant's motion to dismiss these charges is denied.

By contrast, the People are charged with 206 days of delay on the Criminal Contempt count, and accordingly, the defendant's motion to dismiss this charge is granted.^[FN1]