| People v Kerley |
| 2015 NY Slip Op 50258(U) [46 Misc 3d 1223(A)] |
| Decided on March 4, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
The People of
the State of New York
against Theodore Kerley, Defendant. |
Defendant was charged, on June 18, 2014, with two counts of criminal contempt in the second degree, in violation of Penal Law § 215.30(3). On July 15, 2014, one count of was dismissed on motion of the People. The defendant now moves for an order dismissing the information pursuant to CPL §§ 30.30 and 30.20. 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 35 days are chargeable to the People. Accordingly, defendant's motion to dismiss is DENIED.
According to the accusatory instrument, from April 18, 2014, to June 3, 2014, the defendant sent e-mail messages to his former girlfriend, Jennifer Robertson, in direct violation of an Order of Protection that was entered on February 27, 2014, in connection with Docket No. 2014NY015968, and which expired on August 26, 2014. The Order of Protection ordered the defendant to, amongst other things, refrain from sending e-mails to Ms. Robertson.
Defendant was arraigned on June 18, 2014, on a misdemeanor complaint charging him with two counts of criminal contempt in the second degree, in violation of Penal Law § 215.30(3). The case was adjourned to July 15, 2014 for conversion. On July 15, 2014, one count was dismissed on motion of the People. Subsequent calendar appearances took [*2]place on September 10, 2014, October 6, 2014, November 24, 2014, and January 8, 2015, on which date the defense announced its intention to file the instant motion. The Court directed the defense to file the motion by December 15, although it did not do so until December 24. The People responded to the motion on January 8, 2015, and on January 28, they provided the Court with transcripts of the June 18, 2014, and September 10, 2014, appearances. The matter has been sub judice since then.
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, his 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 five court dates from the commencement of the action through the filing of the motion to dismiss. Those events spanned 189 calendar days, and 35 of those days are chargeable to the People. The motion to dismiss is accordingly denied.
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 June 18, 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 July 15 for conversion. Accordingly, 27 days are chargeable to the People. The People concede these 27 days.
Contrary to the defense assertions, the transcribed minutes of the June 18 appearance do not indicate that the defense attorney waived motions on that day.
On July 15, 2014, the People filed and served a supporting deposition. The Court directed the defense to file motions by August 5. The case was adjourned to September 10 for response and decision.
For this period, 0 days are chargeable to the People. CPL §30.30 (4)(a) ("reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions" is excludable). "It should be noted that time requested by the defense to file motions is excludable, even if no motion is ultimately submitted (citations omitted)." People v. Sai, 223 AD2d 439, 440 (1st Dept 1996); see also, People v. Brown, 99 NY2d 488, 491-92 (2003).
The defense had not filed motions by September 10, 2014. The People were not ready, and the case was adjourned to October 6 for trial. The period is excludable [*3]because the People "could hardly have been expected to proceed to trial" when the case had been adjourned for motion practice. See People v. Garrett, 182 AD2d 496, 497 (1st Dept. 1992). "[W]hen a defendant seeks an adjournment for the purpose of engaging in motion practice, but motions are thereafter waived (or precluded), the People are entitled to a reasonable, excludable adjournment for trial (citations omitted)." People v. Schneck, 20 Misc 3d 1146(A) (Crim. Ct. NY County 2008). Accordingly, 0 days are chargeable for this period.
The People answered "not ready" for trial on October 6, 2014, and the case was adjourned to November 24. On October 14, however, off-calendar, the People filed with the Court and served on defense counsel by mail a Certificate of Readiness ("COR"). Accordingly, 8 days are chargeable to the People. The People concede these 8 days.
On November 24, 2014. the People answered "ready" for trial, but the defense announced its intention to file the instant motion. The defense was directed to file the motion by December 15. The Court adjourned the case to January 8 for response and decision. For this period, 0 days are chargeable to the People. CPL § 30.30(4)(a) ("reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions" is excludable). The period is also excludable because the People answered ready, on the record, in the presence of defense counsel. See People v. Cajigas, 224 AD2d 370, 372 (1st Dept. 1996), appeal denied, 88 NY2d 845 (1996); People v. Armstrong, 163 Misc 2d 588, 590 (App. Term 1st Dept. 1994), appeal denied, 84 NY2d 1028 (1995).
On January 8, 2014, the People filed a response to the instant motion. The Court adjourned the case to March 4 for the decision. For this period, 0 days are chargeable to the People. CPL § 30.30(4)(a) ("reasonable period of delay resulting from other proceedings concerning the defendant, including ... pre-trial motions" is excludable).
As detailed above, 35 days (27 + 8 = 35) are chargeable to the People. Defendant's motion to dismiss pursuant to CPL § 30.30 is accordingly denied.
The defendant also moves to dismiss the action pursuant to C.P.L. §30.20. After examining the factors set out in People v. Taranovich, 37 NY2d 442 (1975), the Court is compelled to deny this portion of the defendant's motion. While 189 days have elapsed since the commencement of the action, only 35 days of delay can be directly attributed to the People. Moreover, the defendant was not subject to an extended period of incarceration during the pendency of this action, and the record is devoid of any [*4]prejudice to the defense caused by the delay. The defendant's motion to dismiss the accusatory instrument pursuant to C.P.L. §30.20 is, therefore, denied.
The defendant's motion to dismiss pursuant to CPL § 30.30 and CPL § 30.20 is denied.
This constitutes the Decision and Order of the Court.