People v. Leal

50 Misc. 3d 855, 23 N.Y.S.3d 560
CourtCriminal Court of the City of New York
DecidedNovember 30, 2015
StatusPublished

This text of 50 Misc. 3d 855 (People v. Leal) is published on Counsel Stack Legal Research, covering Criminal Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Leal, 50 Misc. 3d 855, 23 N.Y.S.3d 560 (N.Y. Super. Ct. 2015).

Opinion

OPINION OF THE COURT

Armando Montano, J.

Defendant was originally charged by felony complaint with assault on a peace officer, police officer, fireman, or emergency medical services personnel (Penal Law § 120.08), assault in the third degree (Penal Law § 120.00 [1]), criminal sale of marijuana in the fourth degree (Penal Law § 221.40), resisting arrest (Penal Law § 205.30), obstructing governmental administration in the second degree (Penal Law § 195.05), criminal possession of marijuana in the fifth degree (Penal Law § 221.10 [1]), unlawful possession of marijuana (Penal Law § 221.05), and harassment (Penal Law § 240.26 [1]). On August 31, 2015, the sole felony count of Penal Law § 120.08 was dismissed.

Defendant moves pursuant to CPL 170.30 (1) (e) and 30.30 to dismiss the accusatory instrument on speedy trial grounds.

In general, the People must be ready for trial within six months for felony cases, 90 days for cases in which the most serious charge is a class A misdemeanor, 60 days for cases in which the most serious charge is a class B misdemeanor, and 30 days for cases in which only a violation is charged. (CPL 30.30 [1].)

Where a felony complaint is replaced with or converted to an information or a misdemeanor complaint, CPL 30.30 (5) (c) provides that

“the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.”

The instant action was commenced on February 19, 2015 by the filing of a felony complaint. On August 31, 2015, the sole [857]*857felony count was dismissed. The top count of the accusatory instrument is now an A misdemeanor, which is punishable by a sentence of imprisonment of up to one year. The aggregate of the time period between the filing of the original felony complaint and the reduced charge, 193 days, and the new time period, 90 days, exceed six months. Therefore, pursuant to CPL 30.30 (5) (c), the People must be ready for trial within six months of February 19, 2015.

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. (People v Kendzia, 64 NY2d 331 [1985].) Second, the People must declare their readiness when they 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 on a motion to dismiss on speedy trial grounds, 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].)

Both defendant and the People agree that 138 days are chargeable to the People for the time period from February 19, 2015 to July 7, 2015. For the sake of clarity, this court has made the following calculations:

[858]*858On February 19, 2015 defendant was arraigned on a felony complaint and the case was adjourned to March 16, 2015 for grand jury action. This court charges the People with 25 days for the time period from February 19, 2015 to March 16, 2015. Twenty-five days included.

On March 16, 2015, there was no grand jury action and the case was adjourned to May 6, 2015 for grand jury action. This court charges the People with 51 days for the time period from March 16, 2015 to May 6, 2015. Fifty-one days included.

On May 6, 2015, there was no grand jury action and the case was adjourned to July 7, 2015 for grand jury action. This court charges the People with 62 days for the time period from May 6, 2015 to July 7, 2015. Sixty-two days included.

On July 7, 2015, there was no grand jury action and the case was adjourned to August 31, 2015. Prior to the next adjourn date, on July 22, 2015, the People filed with the court and served on defense counsel the affirmation of Assistant District Attorney (ADA) Adrienne V. Hawkins in support of a motion to reduce the charges pursuant to CPL 180.50 (2) (the affirmation). The People also submitted as an exhibit to the affirmation a copy of a superseding information and three supporting depositions. On page two of the affirmation, ADA Hawkins asserts that “[u]pon the filing of this document, the People are stating ready for trial on the remaining counts two through nine.”

On August 31, 2015, the People asked the court to conduct an inquiry pursuant to CPL 180.50 (2) to reduce the charges. After conducting an inquiry, the court reduced the charges in the felony complaint. The People also declared their readiness on that date. The case was thereafter adjourned to October 7, 2015 for the filing of defense motions.

Defendant argues that this case must be dismissed as the People failed to be ready for trial within six months of commencement. Defendant asserts that the People should be charged with 193 days for the entire time period from February 19, 2015, the date on which defendant was arraigned, to August 31, 2015, the date on which the charges were formally reduced pursuant to CPL 180.50 (2).

Defendant takes issue with the affirmation that was filed on July 22, 2015 since it fails to conform to the requirements of a written motion. Specifically, defendant notes that the affirmation fails to give notice to counsel of the date, time, and loca[859]*859tion when a party intends to move a court for specific relief. More importantly, defendant argues that the affirmation “does not seek to compel action; there is nothing for opposing counsel to litigate.” (Affirmation of defense counsel at 8.) Under CPL 180.50 (2), defendant avers that “the only role of the prosecution in the process of reducing felony charges is to offer consent to a judicial inquiry.” (Id.)

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Related

People v. Yolles
705 N.E.2d 1201 (New York Court of Appeals, 1998)
People v. Luperon
647 N.E.2d 1243 (New York Court of Appeals, 1995)
People v. England
636 N.E.2d 1387 (New York Court of Appeals, 1994)
People v. Berkowitz
406 N.E.2d 783 (New York Court of Appeals, 1980)
People v. Kendzia
476 N.E.2d 287 (New York Court of Appeals, 1985)
People v. Santos
501 N.E.2d 19 (New York Court of Appeals, 1986)
People v. Cortes
80 N.Y.2d 201 (New York Court of Appeals, 1992)
People v. Brown
227 A.D.2d 237 (Appellate Division of the Supreme Court of New York, 1996)
People v. Minor
144 Misc. 2d 846 (Appellate Terms of the Supreme Court of New York, 1989)
People v. Radtke
153 Misc. 2d 554 (New York Supreme Court, 1992)
People v. Davis
169 Misc. 2d 977 (New York County Courts, 1996)
People v. Page
177 Misc. 2d 448 (Criminal Court of the City of New York, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
50 Misc. 3d 855, 23 N.Y.S.3d 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-leal-nycrimct-2015.