[*1]
People v Kulzer
2015 NY Slip Op 50542(U) [47 Misc 3d 1210(A)]
Decided on April 2, 2015
Just Ct Of Town Of Sand Lake, Rensselaer County
Fryer, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2015
Just Ct of Town of Sand Lake, Rensselaer County


The People of the State of New York

against

Tammy Kulzer, Defendant.




XX/15
David W. Fryer, J.

The above named defendant is presently charged under Penal Law 240.26, Harassment in Second Degree, via a Prosecutor's Information filed in this Court on January 29, 2015. On or about January 31, 2015, attorney for the Defendant, Mark A. Fluery Esq. filed a motion to dismiss as per Criminal Procedure Law sections 170.30(1) and 30.30 specific to the prior charge of Penal Law 120.00 (1), Assault in the Third Degree, thereafter reduced in the referenced Prosecutor's Information. An affirmation in opposition was filed by Rensselaer County Assistant District Attorney Christine N. Labbate Esq. on February 26, 2015. A reply affirmation was filed by Attorney Fluery on the same day.

THE FACTS



A misdemeanor accusatory instrument and a supporting deposition charging the Defendant herein with Penal Law section 120.00(1) Assault in the Third Degree was filed in this Court on October 20, 2014. On the evening of October 20, 2014, the Defendant appeared, along with Attorney Fluery, was arraigned on the referenced charge and a temporary order of protection was issued and served on the Defendant. The matter was adjourned until November 11, 2014 and then again until December 8, 2014. On December 8, 2014, after a plea offer was rejected, the case was adjourned until February 10, 2015 for a jury trial. On January 29, 2015, a Prosecutor's Information was filed in this Court via facsimile, charging the defendant with Penal Law 240.26, Harassment in Second Degree. On that same day, January 29, 2015, the People filed a notice as per Criminal Procedure Law 710.30 and a notice they are ready for trial.

Arguments

It is the position of the Defendant that by not announcing readiness for trial until January 29, 2015, the People have violated the Defendant's rights to a speedy trial as set out in Criminal Procedure Law section 30.30 (1) (a). Among other things, the Defendant argues that some one hundred days have expired from the dated of arraignment and the notice of readiness, in clear violation of the ninety period set forth in Criminal Procedure Law 30.30 (1) (b). The People, in their affirmation in opposition, do not deny the time periods set forth by the Defendant, but [*2]suggest that when the trial date was set December 8, 2014, the mandate under Criminal Procedure Law 30.30 was met as they agreed to the trial date. The People further argue that On December 8, 2014, by not objecting to the trial date and otherwise consenting to the same, the time necessary to be ready for trial was stayed at 51 days or October 19, 2014 until December 8, 2014.

LEGAL ANALYSIS

It is well settled that the filing of a superseding accusatory instrument does not extend the time necessary for the People to be ready for trial as per Criminal Procedure Law 30.30 ( see People v Lomax, 50 NY2d 351 [1980] and People v Sinista, 67 NY2d 236 [1986]). The Court of Appeals in People v Lomax, by referencing the definition of "Commencement of a Criminal Matter" set out in Criminal Procedure Law 1.20 [17], made clear that a criminal matter is commenced upon the filing of an accusatory instrument and that upon the filing of superseding documents, the commencement date must refer back to the original filing of the first accusatory (Id at page 356). Therefore, in the instant action, the filing of the Prosecutor's Information charging PL 240.26, did nothing to change the commencement date relative to the charges under PL 120.00 for Assault in the third degree, filed on or about October 20, 2014.

The contested issue before this Court refers back to whether by consenting to an actual trial date, the People met their burden under Criminal Procedure Law 30.30 and stayed the time necessary to announce readiness. The Court of Appeals has weighed in on this issue also. In People v Kendria and MacLeod's Prescription Pharmacy, Inc., 64 NY2d 331 [1985], the Court found that an affirmative act by the prosecution of readiness for trial must be made either on the record before the Court or in writing and that the People cannot "[s]imply rely on the case



being placed on the trial calendar".(emphasis added), (Id at 336) The record before this Court shows no timely announcement of readiness by the prosecution either in writing or otherwise. While this Court is mindful of the transition of the administration in the Rensselaer County District Attorney's office around the first of the year after the November election, the mandate under Criminal Procedure Law sections 30.20 and 30.30 is clear. Neither the verbal consent to a jury trial date, nor the filing of subsequent accusatory document in the form of a Prosecutor's Information by the District Attorney, stayed the ninety day period as set for in Criminal Procedure Law 30.30 (1) (b) for the charge under Penal Law 120.00 Assault in the third degree as a misdemeanor.

While there are other issues raised as part of the Defendants' motion, given the foregoing they are deemed moot. The Defendant's motion to dismiss is granted.



Dated: April 2, 2015

______________________

Hon. David W. Fryer

Town Justice