[*1]
People v Garcia
2014 NY Slip Op 51501(U)
Decided on October 20, 2014
Criminal Court Of The City Of New York, New York County
Statsinger, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 20, 2014
Criminal Court of the City of New York, New York County


The People of the State of New York

against

Ysidora Garcia, Defendant.




2014NY028960



For the Defendant: The Legal Aid Society, by Melissa Kaplan, Esq.



For the People: Cyrus R. Vance, Jr., New York County District Attorney, by ADA Justin Chung


Steven M. Statsinger, J.

Defendant, charged with two counts of Assault in the Third Degree, in violation of Penal Law § 120.00(1) and (2), Resisting Arrest, in violation of Penal Law §205.30, Attempted Assault in the Third Degree, in violation of Penal Law §§110/120.00(1), Consumption of Alcohol in a Public Place, in violation of Administrative Code §10-125(b), and Harassment in the Second Degree, in violation of Penal Law §240.26(1), moves for an order dismissing the Information pursuant to CPL § 30.30. The Court has reviewed the entries and documents in the court file, the parties' motion papers, and the relevant statutes and case law. For the reasons discussed below, the Court finds that 115 days are chargeable to the People. Accordingly, defendant's motion to dismiss is GRANTED.



I. FACTUAL BACKGROUND



A. The Allegations

According to the accusatory instrument, Police Officer To observed the defendant, on the sidewalk, drinking alcohol from a styrofoam cup. While attempting to place her under arrest for that conduct, she twisted away from the officer, refused to put her hands behind her back, flailed her arms and spat in the faces of three police officers. After being placed inside the police van, she kicked Officer To in the chest and stomach at least three times causing redness to those areas and substantial pain.



B. Legal Proceedings

Defendant was arraigned on April 12, 2014, on an accusatory instrument charging her with two counts of Assault in the Third Degree, in violation of Penal Law § 120.00(1) and (2), Resisting Arrest, in violation of Penal Law §205.30, Attempted Assault in the Third Degree, in violation of Penal Law §§110/120.00(1), Consumption of Alcohol in a Public Place, in violation [*2]of Administrative Code §10-125(b), and Harassment in the Second Degree, in violation of Penal Law §240.26(1).

The defendant was released on her own recognizance, and the case was



adjourned to June 9, 2014, for conversion. Subsequent calendar appearances took place on July 22, 2014, July 29, 2014, and September 18, 2014. The instant motion was filed on September 17, 2014. The People responded to the motion on October 7, 2014, and the matter has been sub judice since then.



II. DISCUSSION

Defendant is charged with "at least one ... misdemeanor punishable by a sentence of imprisonment of more than three months." CPL § 30.30(1)(b). Thus, her motion to dismiss must be granted if the People were not ready for trial within 90 chargeable days of the commencement of the action. Id. Here, there were four court dates from the commencement of the action through the filing of the motion to dismiss. Those events spanned 158 calendar days, and 115 of those days are chargeable to the People. The motion to dismiss is accordingly granted.

A. The Speedy Trial Calculations



1. April 12, 2014, to June 9, 2014: 58 Days Chargeable

Criminal Procedure Law § 1.20(17) provides that "a criminal action is



commenced by the filing of an accusatory instrument against a defendant in a criminal court." In this case, that event occurred at defendant's arraignment on April 12, 2014. The speedy trial clock started on the next day. People v. Stiles, 70 NY2d 765, 767 (1987). At the arraignment, the Court adjourned the case to June 9 for conversion, although the accusatory instrument was actually a first -party document.

Nevertheless, the People did not announce their readiness for trial on April 12, 2014, nor have they identified a statutory exclusion that would render this period excludable. As a matter of fact, the minutes of defendant's arraignment reflect that the People failed to say anything in response to the Court's statement that the case was being adjourned for a supporting deposition. Accordingly, this 58-day period is chargeable to the People irrespective of whether or not a supporting deposition was required in this case.



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 the defendant's arraignment, they could have answered ready for trial at that time, or filed a certificate of [*3]readiness at any point thereafter (citation omitted). Since they did neither, the speedy-trial clock was not tolled.



People v. Woods, 21 Misc 3d 1105(A) *2 (Crim. Ct. NY County 2008). See also, People v. Williams, 186 Misc 2d 47 (Crim. Ct. NY County 2000).

Nor is the adjournment excludable pursuant to CPL §30.30(4)(g) as an



exceptional circumstance. "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.'" People v. Cortes, 80 NY2d 201, 211-12 (1992); People v. Woods, 21 Misc 3d 1105(A) (Crim. Ct. NY County 2008).

The People are, therefore, charged with 58 days for this adjournment period.



2. June 9, 2014, to July 22, 2014: 0 Days Chargeable

On June 9, 2014, the Court deemed the complaint an information finding that a corroborating affidavit was unnecessary. The Court ordered a Huntley/Dunaway hearing and adjourned the case to July 22 for hearing and trial. This period is excludable under People v. Green, 90 AD2d 705, 706 (1st Dept 1982), under which a "reasonable period" after the decision on pretrial motions is excludable, to give the People time to prepare. See also People v. Forbes, 7 AD3d 473, 474 (1st Dept 2004); People v. Dean, 45 NY2d 651, 657 (1978). Accordingly, 0 days are chargeable for this period.



3. July 22, 2014, to July 29, 2014: 7 Days Chargeable

The People answered "not ready" for trial on July 22, and the case was adjourned to July 29. Accordingly, 7 days are chargeable to the People.



4. July 29, 2014, to September 18, 2014: 50 Days Chargeable

On July 29, 2014, the People answered "not ready" for trial. The Court adjourned the case to September 18, 2014. On September 17, the defendant filed the instant motion to dismiss; this had the effect of stopping the speedy trial clock. CPL §30.30(4)(a). Accordingly, 50 days are chargeable to the People.



B. Conclusion

As detailed above, 115 days (58 + 7 + 50 = 115) are chargeable to the People. Defendant's motion to dismiss pursuant to CPL § 30.30 is accordingly granted.



IV. CONCLUSION

Since 115 days of speedy trial time are chargeable to the People, defendant's motion



to dismiss is granted.

This constitutes the Decision and Order of the Court.



Dated: October 20, 2014_______________________



New York County, New YorkSteven M. Statsinger



Judge of the Criminal Court