[*1]
People v Gundy
2022 NY Slip Op 50678(U) [75 Misc 3d 1227(A)]
Decided on July 27, 2022
District Court Of Suffolk County, First District
Sachs, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2022
District Court of Suffolk County, First District


People of the State of New York

against

Thomas L. Gundy, III, Defendant




Docket No. CR-031995-20SU



Raymond A. Tierney
District Attorney of Suffolk County
Hector LaSerna / Of Counsel
District Court Bureau
400 Carleton Avenue
Central Islip, NY 11722

Pierre Bazile, Esq.
Attorney for Defendant
The Cassar Law Firm, P.C.
13 Carver Street
Huntington Village, NY 11743


Eric Sachs, J.

Upon the following papers read on these motions for reargument

Notice of Motion/xxxxxxxxxxxxxxx and supporting papers X

Notice of Cross Motion and supporting papers

Answering Affidavits and supporting papers

Replying Affidavits and supporting papers X

Filed papers

Other

Exhibits X; Certificate(s) of Compliance X; Post-filing letter(s) and brief(s)

(and after hearing counsel in support of and opposed to the motion) it is,

ORDERED that the branch of the defendant's motion to reargue his previous motion to dismiss the accusatory instruments based upon an alleged violation of his speedy trial rights is GRANTED.

On November 4, 2020, the defendant was arrested and charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of New York State Penal Law § 220.03, a class A misdemeanor. He was arraigned on November 24, 2020.



A. Previous Motions and Orders

On December 14, 2021, the defendant moved, inter alia, to strike the CoC/SoR based on failure to comply with automatic disclosure requirements of Criminal Procedure Law ("CPL") article 245, and to dismiss the accusatory instruments pursuant to §§ CPL 170.30(1)(e) and 30.30 based upon an alleged violation of his speedy trial rights.[FN1] Specifically, the defendant argued that (1) the People were chargeable with more than 90 days on the speedy trial clock; (2) the People's Certificate of Compliance/Statement of Readiness ["CoC/SoR"], filed on August 17, 2021, was invalid because the People failed to comply with their statutorily-mandated disclosure requirements of CPL article 245 prior to filing it, specifically, by failing to preserve and disclose any video of the alleged incident.

In a decision dated March 23, 2022, this Court denied the defendant's motion in toto, but did not specifically address the first argument (i.e., that the People were chargeable with more than 90 days on the speedy trial clock irrespective of the validity of the August 17, 2021 CoC/SoR). (See 3/23/2022 Order at pp. 1-2).



B. Motion to Reargue

By motion dated April 17, 2022, the defendant moved the Court to reargue his prior motion to strike pursuant to CPL § 245 and to dismiss pursuant to CPL §§ 170.30(1)(e) and 30.30. In his motion for reargument, the defendant argued that the Court overlooked or misapprehended the law and/or facts with respect to his arguments that: (1) the People were chargeable with more than 90 days on the speedy trial clock; (2) the People's CoC was rendered invalid as a result of the destroyed video; and (3) the People engaged in intentional spoliation.

In a decision dated June 17, 2022, this Court denied the defendant's motion for [*2]reargument, and held that (1) the record was incomplete with respect to whether the People were chargeable with more than 90 days on the speedy trial clock; (2) the People's August 17, 2021 CoC was not rendered invalid as a result of the destroyed video; and (3) the People did not engage in intentional spoliation of video evidence.

With respect to the defendant's first contention made in his motion for reargument, namely, that the People were chargeable with more than 90 days on the speedy trial clock, this Court ordered the People to provide the minutes of court appearances on March 3, 2021, March 31, 2021, April 20, 2021, June 15, 2021, and August 24, 2021. Since the defendant's counsel maintained that, as substitute counsel, he was entitled to proof of waivers given by prior counsel, the Court required submission of the minutes prior to making a determination on the question.

On June 27, 2022, the People provided the Court with the required records (i.e., minutes of court appearances on March 3, 2021, March 31, 2021, April 20, 2021, and June 15, 2021). Accordingly, this Court now turns to the merits of the defendant's first argument in his motion for reargument, namely, that even assuming the validity of the August 17, 2021 CoC, the People are chargeable with more than 90 days on the speedy trial clock.

1. Motion to Dismiss Based on Statutory Speedy Trial Grounds

Pursuant to CPL § 30.30(1)(b), with respect to the misdemeanor charge, the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal action, taking into account all excludable time periods. The within criminal action was commenced on November 24, 2020. The People filed their CoC on August 17, 2021. The defendant contends that, even if the August 17, 2021 CoC/SoR were valid, there are 267 days that elapsed between the commencement and the time of the filing of the CoC, and the People failed to prove the existence of sufficient excludable time.[FN2]

This Court makes the following speedy trial calculation: The within action was commenced on November 24, 2020. It is undisputed that at arraignment on November 24, the matter was adjourned until January 14, 2021 to allow the defendant to obtain private counsel. Thus, the initial 52-day adjournment from November 24, 2020 until January 14, 2021 is excludable pursuant to CPL § 30.30(4)(f), because the adjournment was for the purpose of allowing the defendant to retain counsel.

Next, the parties agree (and it is clear from the minutes of the court appearances) that the [*3]adjournments on January 14,[FN3] February 3,[FN4] February 24,[FN5] April 20,[FN6] and May 18, 2021,[FN7] are not chargeable to the People, as the defendant's counsel expressly agreed to waivers during each those appearances. (See People's Aff. in Opp. at Exs. A, C, D, E; see also Letter to the Court from the People, dated June 24, 2022, enclosing 4/20/2021 Tr.)). Therefore, the time from November 24, 2020 until January 14, 2021 (52 days) is excludable; the time from January 14 until January 29, 2021 (15 days) is excludable; the time from February 3 until February 24, 2021 (21 days) is excludable; the time from February 24 until March 3, 2021 is excludable (7 days); the time from April 20 until May 18, 2021 (28 days) is excludable; the time from May 18, until June 15, 2021 (28 days) is excludable. Consequently, a total of 151 days are excludable from the speedy trial calculation.

The parties further agree that the time from January 29 [FN8] until February 3 is chargeable to the People, as the defendant's counsel expressly refused to waive time during that appearance.

By contrast, the parties disagree as to whether the adjournments on March 3,[FN9] March 31,[FN10] [*4]June 15,[FN11] July 15,[FN12] and August 16, 2021 [FN13] are excludable time. The defendant contends that the transcripts of court appearances demonstrate that the defendant's counsel either refused, or did not provide, express waivers on the record on those dates. See Letter from Attorney Bazile to the Court, dated June 29, 2022, at p. 1 (Court file). In opposition, the People argue that, despite the fact that the defendant refused waivers, it is clear from the record that the adjournments were either at the defendant's request, or for the purpose of allowing the defendant to consider the People's plea offer. See People's Supplemental Brief, Undated, Submitted on July 25, 2022 ("Supp. Br."), at p. 2/7.

It is well-established law that, for an adjournment to be excludable on the defendant's consent under CPL § 30.30(4)(b), a defendant's consent must be "clearly expressed." People v Liotta, 79 NY2d 841, 843, 580 NYS2d 184 [1992]. Here, the record indicates that the defendant either did not provide, or expressly refused, consent to adjournments on March 3, March 31, June 15, July 15 and August 16, 2021.

Although the record indicates that both counsel discussed obtaining an adjournment to allow for ongoing plea negotiations during court appearances on those dates, it is the opinion of this Court that, following the January 2020 amendments to the CPL, such discussions alone do not toll the speedy trial clock because nothing prevented the People from certifying off-calendar at any time. In light of the fact that the defendant's counsel expressly withheld consent to waiver on those dates, and in light of the People's independent obligation to certify irrespective of ongoing plea negotiations, this Court holds that the time is not excludable.

Therefore, the Court finds that the 5-day period from January 29 through February 3, [*5]2021 is chargeable to the People; the 28-day period from March 3 to March 31 is chargeable to the People; the 20-day period from March 31 through April 20, 2021 is chargeable to the People; the 30-day period from June 15, 2021 through July 15 is chargeable to the People; the 32-day period from July 15 until August 16, 2021 is chargeable to the People. The 1-day period from August 16 until August 17 is also chargeable to the People.

In sum, this Court finds that a maximum of 116 days are chargeable to the People. Accordingly, the defendant's motion to dismiss based on an alleged speedy trial violation is GRANTED.

By reason of the foregoing, the defendant's motion to reargue the branch of his previous motion to dismiss is GRANTED.



Dated July 27, 2022
HON. ERIC SACHS, J.D.C.

Footnotes


Footnote 1:On December 14, 2021, the defendant also moved to reargue or renew his previous motion to suppress evidence seized as a result of his arrest. In its decision dated March 23, 2022, this Court also rejected the defendant's motion to reargue and/or renew with respect to the previous motion to suppress. (See 3/23/2022 Order at p. 2). By motion dated April 17, 2022, the defendant moved to reargue his previous motion to reargue, which motion was denied by this Court on June 17, 2022.

Footnote 2:In his motion for reargument, the defendant contends that the People "conceded" that 86 days (from 11/24/2020 until 1/14/2021 and from 7/15/2021 until 8/18/2021) were chargeable to the People. (See also Def.'s Aff. (12/14/2021) at 6). This Court rejects the defendant's contention, as the People nowhere "conceded" that the time from 11/24/2020 until 1/14/2021 was chargeable to them. See Email from ADA Mallek to Attorney Bazile, dated October 22, 2021, Ex. D to Def.'s Aff. (12/14/2021) (merely stating that prior counsel had provided waivers from "1/14/21 [until] 7/15/21").

Footnote 3:The transcript of the January 14, 2021 court appearance states the following: "[People]: Counsel, is that with waivers of 30.30 and tolling discovery? [Defendant's counsel]: It is." 1/14/2021 Tr. at p. 4, ll. 10-12. (People's Aff. in Opp. Ex. A).

Footnote 4:The transcript of the February 3, 2021 court appearance states the following: "[Defendant's counsel]: And I'll waive 30.30 and the tolling of discovery until that date." 2/3/2021 Tr. at p. 2, ll. 23-25. (People's Aff. in Opp. Ex. C).

Footnote 5: The transcript of the February 24, 2021 court appearance states the following: "[Defendant's counsel]: So I will waive until the 3rd, just so I can discuss the offer with [defendant]." 2/24/2021 Tr. at p. 4, ll. 22-24. (People's Aff. in Opp. Ex. D).

Footnote 6:The transcript of the April 20, 2021 court appearance states the following: "[People]: Counsel, will you be waiving 30.30 and 245 at this time? [Defendant's counsel]: Yes, counsel." Letter to the Court from the People, dated June 24, 2022, enclosing 4/20/2021 Tr. at p. 3, ll. 1-4.

Footnote 7: The transcript of the May 18, 2021 court appearance states the following: "[People]: Counsel, will you be consenting to the adjournment? [Defendant's counsel]: Yes, I will." 5/18/2021 Tr. at p. 4, ll. 3-5. (People's Aff. in Opp. Ex. E).

Footnote 8:The transcript of the January 29, 2021 court appearance states the following: "[Defendant's counsel]: Okay. So at this time there's no waivers on this matter." 1/29/2021 Tr. at p. 2, ll. 17-19. (People's Aff. in Opp. Ex. B).

Footnote 9:The transcript of the March 3, 2021 court appearance states the following: "[People]: Tolling discovery? [Defendant's counsel]: Yes, I am." Letter to the Court from the People, dated June 24, 2022, enclosing 3/3/2021 Tr. at p. 4, ll. 13-14. Unlike during prior court appearances, on March 3, there was no mention by either counsel of waiving speedy trial time. Cf., (1/14/2021 Tr. at p. 4, ll. 10-12) ("[People]: Counsel, is that with waivers of 30.30 and tolling discovery? [Defendant's counsel]: It is."). Based on the plain language employed by both counsel on March 3, this Court deems defendant's counsel statement sufficient to have tolled discovery pursuant to CPL article 245, but insufficient to have waived speedy trial time pursuant to CPL § 30.30. Therefore, the additional time from March 3 until March 31, 2021 (28 days) is also chargeable to the People.

Footnote 10:The transcript of the March 31, 2021 court appearance contains no reference to waivers or to consent to excluding time. See Letter to the Court from the People, dated June 24, 2022, enclosing 3/31/2021 Tr. at pp. 1-3.

Footnote 11:The transcript of the June 15, 2021 court appearance contains no reference to waivers or to consent to excluding time. See Letter to the Court from the People, dated June 24, 2022, enclosing 6/15/2021 Tr. at pp. 1-4.

Footnote 12:The transcript of the July 15, 2021 court appearance states the following: "[Court] [[] are the People certified on this? [People]: No, your Honor. I will certify off calendar. Counsel has been waiving. My understanding is he is going to be withdrawing waivers at this time. People will be certified well before the next court date." 7/15/2021 Tr. at p. 2, ll. 16-21. (People's Aff. in Opp. Ex. F).

Footnote 13:The transcript of the August 16, 2021 court appearance contains no reference to waivers or to consent to excluding time. 8/16/2021 Tr. at pp. 1-3. (People's Aff. in Opp. Ex. G).