The People of
the State of New York,
against
Anna Rodriguez, Defendant.
|
2014BX034180
For Defendant — The Bronx Defenders by Elizabeth Eisenberg
Armando Montano, J.
Defendant is charged with three (3) counts of Criminal Possession of a Controlled
Substance in the Seventh Degree (PL § 220.03) and one (1) count of Unlawful
Possession of Marijuana (PL § 221.05). Defendant moves pursuant to CPL §
30.30, to dismiss the accusatory instrument on speedy trial grounds, alleging that more
than 90 days have elapsed since the commencement of the instant action.
The accusatory instrument alleges in pertinent part that on June 27, 2014 at
approximately 7:50 a.m. at the northeast corner of Franklin Avenue and East 169th
Street, County of Bronx, State of New York:
Deponent [PO Shaniqua Clark] states that, at the above time and place, deponent
observed defendant to have on her person, down the front of her pants, six (6) glassine
envelopes containing a cream/ivory colored, powdery substance.
Deponent
further states that deponent is a New York city police officer, and based upon deponent's
training and experience, which includes training in the recognition of controlled
substances and their packaging, the aforementioned substance is alleged to be heroin.
Deponent is informed by Police Officer Luis Angeles that defendant had, on
her person, inside of her purse, one (1) small ziplock bag containing a cream/ivory
colored powdery substance.
Deponent is further informed by informant that
informant is a New York city police officer, and based upon informant's training and
experience, which includes training in the recognition of controlled substances and their
packaging, the aforementioned substance is alleged to be cocaine.
Deponent
is further informed by informant that defendant had, on her person, inside of her purse,
one (1) small ziplock bag containing dried green leafy substance with a distinctive odor.
Deponent is further informed by informant that informant is a New York city
police officer, and based upon informant's training and experience, which includes
training in the recognition of controlled substances and their packaging, the
aforementioned substance is alleged to be marijuana.
Deponent is further
informed by informant that defendant had, on her person, inside of her purse, one (1)
small ziplock bag containing dried brown leafy substance with a pungent odor.
Deponent is further informed by informant that informant is a New York city
police officer, and based upon informant's training and experience, which includes
training in the recognition of controlled substances and their packaging, the
aforementioned substance is alleged to be phencyclidine (PCP).
In a misdemeanor prosecution, a defendant has a statutory right to be
prosecuted by a misdemeanor information. CPL § 170.65(1). An information is
sufficient where "non-hearsay allegations of the factual part of the information and/or
any supporting depositions establish, if true, every element of the offense charged and
the defendant's commission thereof." CPL § 100.40(c). Therefore, absent a
jurisdictionally sufficient information, the People cannot communicate an effective
answer of readiness. People v. Colon, 59 NY2d 921 (1983).
The top count of the accusatory instrument is a Class A misdemeanor, which
is punishable by sentence of imprisonment of up to one year. Pursuant to CPL §
30.30(1)(b), the People must be ready for trial within 90 days of the commencement of a
criminal action where the defendant is charged with one or more offenses, at least one of
which is a misdemeanor punishable by sentence of imprisonment of more than three
months, and none of which is a felony. For CPL § 30.30 purposes, in order for the
People to be "ready for trial", the People must satisfy two elements. First, there must be a
communication of readiness by the People which appears on the trial court's record by
way of either a statement of readiness in open court or a written notice of readiness sent
by the prosecutor to both defense counsel and the court clerk. See, People v.
Kendzia, 64 NY2d 331 (1985). Second, the People must declare their readiness when
there are in fact ready to proceed to trial. Id. at 337. "A statement of readiness 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). The
test is whether the People "have done all that is required of them to bring the case to a
point where it may be tried." Id.
In order to satisfy his or her initial burden, the defendant must demonstrate
that the People failed to declare their readiness within the statutorily prescribed time
period. People v. Luperon, 85 NY2d 71 (1995). Once the defendant meets his or
her initial burden, the onus is upon the People to establish sufficient excludable delay to
withstand dismissal. People v. Santos, 68 NY2d 859 (1986); People v.
Berkowitz, 50 NY2d 333 (1980). "Whether the People have satisfied [their 30.30]
obligation is generally determined by computing the time elapsed between the filing of
the first accusatory instrument and the People's declaration of readiness, subtracting any
periods of delay that are excludable under the terms of the statute and then adding to the
result any postreadiness periods of delay that are actually attributable to the People and
are ineligible for an exclusion." People v. Cortes, 80 NY2d 201, 208 (1992).
Defendant asserts that the People have never stated ready as to any count of the
[*2]complaint nor have they ever contested the fact that
the complaint remained unconverted. As such, defendant argues that the complaint must
be dismissed in its entirety.
This Court did not receive any papers in opposition from the People.
Therefore, defendant's allegations are deemed admitted. People v. Cole, 73 NY2d
957 (1989).
The Court action sheet indicates that on January 5, 2015, defense counsel
informed the Court that the instant case should be referred to "Part C" to join two open
matters for tracking. Most notably, there is no corresponding written notation to indicate
that defense counsel waived 30.30 and withdrew the instant motion. On January 13,
2015, the case was transferred from Part C back to Part AP-3 and adjourned to January
16, 2015. Based on the foregoing, this Court finds that defense counsel never waived
30.30 for the instant case.
On June 28, 2014, defendant was arraigned on a
misdemeanor complaint and released on her own recognizance. Contrary to defendant's
assertions, at arraignment, the People stated ready on one (1) count of PL § 220.03
pertaining to the heroin. The case was adjourned to August 14, 2014 for full conversion
as to the remaining counts, to wit: two (2) counts of Criminal Possession of a Controlled
Substance in the Seventh Degree and one (1) count of Unlawful Possession of
Marijuana.
CPL § 170.30(1)(e) provides that the court may dismiss the accusatory
instrument or any count thereof where the defendant has been denied his right to a
speedy trial. Therefore, "a defect in a count does not necessarily require dismissal of all
counts of a multi-count accusatory instrument." People v. Minor, 144 Misc 2d
846, 848 (App Term, 2d Dept. 1989); see also, People v. Naim, 46 Misc 3d
150(A) (App Term, 1st Dept. 2015); People v. Miglio, 17 Misc 3d 165
(Crim Ct, Kings County 2007).
The People's June 28, 2014 statement of readiness on one (1) count of PL
§ 220.03 pertaining to the heroin stopped the speedy trial clock on this sole count
since that count was converted on that date. The People are chargeable for zero days as to
the sole converted count of PL § 220.03 pertaining to the heroin for the time period
from June 28, 2014 to June 28, 2014. 0 days included. As to the unconverted
counts, the People are chargeable with 47 days for the time period from June 28, 2014 to
August 14, 2014. 47 days included.
It is undisputed that the People
never stated readiness on the remaining two (2) counts of PL § 220.03 pertaining to
the cocaine and PCP nor as to the one (1) count of PL § 221.05 pertaining to the
marijuana. A review of the court file indicates that the People never filed a supporting
deposition from Police Officer Luis Angeles, the informant identified in the complaint
who allegedly recovered the cocaine, PCP, and marijuana from defendant's person, in
order to convert the remaining counts in the complaint pertaining to the possession of
cocaine, PCP, and marijuana.
On August 14, 2014, the People indicated to the Court that they were not
ready since they still required a supporting deposition for conversion. The case was
adjourned to September 11, 2014 for full conversion. Therefore, this Court charges the
People with 28 days for the aforementioned three (3) unconverted counts for the time
period from August 14, 2014 to September 11, 2014. 28 days included.
On September 11, 2014, the People had yet to file a supporting deposition. The
two (2) counts of Criminal Possession of a Controlled Substance and one (1) count of
Unlawful Possession of Marijuana remained unconverted. The case was adjourned to
October 21, 2014 for conversion. The action sheet also indicates that the People would
be charged until a Statement of Readiness was filed along with the supporting deposition
from Police Officer Luis Angeles. [*3]This Court charges
the People with 40 days for the unconverted counts for the time period from September
11, 2014 to October 21, 2014. 40 days included.
On October 21, 2014, the People had yet to file a supporting deposition in
support of the unconverted counts. The case was again adjourned to December 2, 2014
for conversion. Defendant filed the instant motion on November 19, 2014, prior to the
next adjourn date. This Court charges the People with 29 days for the unconverted counts
for the time period from October 21, 2014 to November 19, 2014. 29 days
included.
On December 2, 2014, the People were directed to respond to the instant
motion by December 16, 2014. This case was thereafter adjourned to January 15, 2015
for decision. Since motion practice was pending, the period of time from November 19,
2014 to January 15, 2015, is excludable. See, People v. Bruno, 300 AD2d
93 (1st Dept. 2002); CPL § 30.30(4)(a). 0 days included.
As stated above, this Court charges the People with 0 days for one (1) count
of Criminal Possession of a Controlled Substance in the Seventh Degree (PL §
220.03) pertaining to the heroin for the time period from June 28, 2014 to June 28, 2014.
This Court charges the People with 47 days for the unconverted counts for the time
period from June 28, 2014 to August 14, 2014, 28 days for the unconverted counts for
the time period from August 14, 2014 to September 11, 2014, 40 days for the
unconverted counts for the time period from September 11, 2014 to October 21, 2014,
and 29 days for the unconverted counts for the time period from October 21, 2014 to
November 19, 2014. In sum, there is a total of 144 days of includable time for the
unconverted counts of Unlawful Possession of Marijuana (PL § 221.05) and two (2)
counts of Criminal Possession of a Controlled Substance in the Seventh Degree (PL
§ 220.03) pertaining to the cocaine and PCP. The People have exceeded the
statutorily prescribed time of 90 days for those counts. As such, defendant's motion
pursuant to CPL § 30.30 is granted in part.
Accordingly, the motion by defendant to dismiss the accusatory instrument on
speedy trial grounds is granted only as to the unconverted counts, to wit: two (2) counts
of Criminal Possession of a Controlled Substance in the Seventh Degree (PL §
220.03) pertaining to the cocaine and PCP and one (1) count of Unlawful Possession of
Marijuana (PL § 221.05). The two (2) counts of Criminal Possession of a
Controlled Substance in the Seventh Degree (PL § 220.03) pertaining to the cocaine
and PCP and one (1) count of Unlawful Possession of Marijuana (PL § 221.05) are
hereby dismissed.
This constitutes the decision and order of this Court.
Dated:March 30,
2015Bronx, New York
______________________________
Hon. Armando Montano