People v. Silverstri

48 Misc. 3d 810, 9 N.Y.S.3d 767
CourtCriminal Court of the City of New York
DecidedMarch 9, 2015
StatusPublished
Cited by2 cases

This text of 48 Misc. 3d 810 (People v. Silverstri) 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. Silverstri, 48 Misc. 3d 810, 9 N.Y.S.3d 767 (N.Y. Super. Ct. 2015).

Opinion

OPINION OF THE COURT

Melissa A. Crane, J.

At the core of defendant’s CPL 30.30 motion is one adjournment period (July 9, 2014 to Sept. 22, 2014). During this time, the arresting officer, Karolina Wierzchowska, was on maternity leave and thus, unavailable to testify. Defendant asks this court to charge the entire adjournment time and dismiss the complaint. The People contend this entire period is excludable under CPL 30.30 (4) (g) as an exceptional circumstance.

The People charge defendant with operating a motor vehicle while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]), both unclassified misdemeanors, and operating a motor vehicle while ability impaired (Vehicle and Traffic Law § 1192 [1]). Defendant moves to dismiss on speedy trial grounds pursuant to CPL 30.30 (1) (b) and 170.30 (1) (e).

On April 16, 2011, the court arraigned defendant. On the next court date, defendant failed to appear and the court issued a warrant. Defendant failed to return to court for more than two years. On November 8, 2013, defendant returned to court voluntarily. The court vacated the warrant and the People resumed their case against defendant.

The People must be ready for trial within 90 days of the commencement of the criminal action when defendant is accused of a misdemeanor carrying a sentence of up to one year incarceration (CPL 30.30 [1] [b]). Although a criminal action commences with the filing of an accusatory instrument, computation for speedy trial purposes commences on the next day (People v Stiles, 70 NY2d 765 [1987]).

To determine whether the People satisfied their obligation for readiness under CPL 30.30, the court must calculate the time between the filing of the first accusatory instrument and the People’s declaration of readiness, then subtract any statutorily excludable periods of delay, and finally, add any [812]*812periods of postreadiness delay attributable to the People where no statutory exclusions apply (People v Cortes, 80 NY2d 201, 208 [1992]).

For the reasons set forth below, the court denies defendant’s motion to dismiss.

Speedy Trial Calculations

April 16, 2011 to May 9, 2011 (Zero Days)

On April 16, 2011, the court arraigned defendant. The court then set a pretrial motion schedule and adjourned the case to May 9, 2011 for response and decision. The court excludes this adjournment period (see CPL 30.30 [4] [a]), and charges zero days.

May 9, 2011 to November 8, 2013 (Zero Days)

On May 9, 2011, defendant failed to appear in court and the court issued a warrant for his arrest. More than two years passed before defendant returned to court on November 8, 2013. The court excludes the period from the issuance of the warrant until the defendant’s return (see CPL 30.30 [4] [c] [ii]), and therefore charges zero days.

November 8, 2013 to November 22, 2013 (Zero Days)

On November 8, 2013, once defendant had returned, the court set another pretrial motion schedule and adjourned the case to November 22, 2013 for response and decision. The court excludes the adjournment immediately following defendant’s return on a warrant. The People are entitled to a reasonable period of time to prepare for trial after defendant returns on a warrant (see People v Muhanimac, 181 AD2d 464, 465-466 [1st Dept 1992], lv denied 79 NY2d 1052 [1992]). The court also excludes this adjournment period for motion practice (see CPL 30.30 [4] [a]). The court charges zero days.

November 22, 2013 to January 21, 2014 (Zero Days)

On November 22, 2013, the court decided defendant’s omnibus motion, granted Mapp, Johnson, and Dunaway hearings, and adjourned the case to January 21, 2014 for hearings and trial. The court excludes this adjournment because the People are permitted “a reasonable time to prepare for trial after the rendering of decisions on motions” under CPL 30.30 (4) (a) (see also People v Cain, 291 AD2d 326, 327 [1st Dept 2002]). Thus, the court charges zero days.

January 21, 2014 to March 4, 2014 (14 Days)

On January 21, 2014, the People answered not ready. The court adjourned the case until March 4, 2014 for hearings and [813]*813trial. The People filed an off-calendar certificate of readiness (COR) on February 4, 2014. Accordingly, the court charges 14 days.

March 4, 2014 to April 10, 2014 (Zero Days)

On March 4, 2014, the People answered not ready for hearings and trial. The court noted on the action sheet that the arresting officer was on maternity leave. The People confirmed Officer Wierzchowska’s maternity leave in their papers, indicating that they “answered not ready for trial as the arresting officer . . . was on maternity leave and would not return until July 2014” (see People’s response to defendant’s motion to dismiss at 3, ¶ 5 [vi]). Beginning in March 2014, the People kept the court appraised of the officer’s unavailability, whereabouts, and when to expect her return.

The court also noted on the action sheet that defense counsel was on trial. Due to the unavailability of both sides, the court excludes this time and charges zero days. Defendant does not dispute that this adjournment period is excludable.

April 10, 2014 to May 27, 2014 (Zero Days)

On April 10, 2014, the People again answered not ready for hearings and trial because Officer Wierzchowska was still on maternity leave. On the preceding court date, the People informed the court that Officer Wierzchowska would be on leave until July 2014. The court excludes this time pursuant to CPL 30.30 (4) (g) as an exceptional circumstance, and charges zero days. Defendant does not dispute that this adjournment period is excludable.

May 27, 2014 to July 9, 2014 (Zero Days)

On May 27, 2014, the People again answered not ready for hearings and trial because Officer Wierzchowska was still on maternity leave. The court again excludes this time under CPL 30.30 (4) (g) and charges zero days.

Defendant does not dispute that this adjournment period is excludable. However, defendant excludes this time period, as well as the two previous adjournment periods, “due to plea negotiations” (see defendant’s motion to dismiss ¶¶ 7-8). Indeed, the court’s action sheet reflects that there would be an expected disposition during this adjournment period.

July 9, 2014 to September 22, 2014 (47 Days)

On July 9, 2014, the People answered not ready for hearings and trial, again due to Officer Wierzchowska’s unavailability. [814]*814Originally, the People informed the court that they expected the officer to return sometime in July 2014. However, on July 9, 2014, according to the People’s papers, they informed the court that the officer’s maternity leave had been extended through September 2014 (see People’s response to defendant’s motion to dismiss at 5, ¶ 5 [ix]). The issue here is whether the court should exclude this adjournment period under CPL 30.30 (4) (g).

Under CPL 30.30 (4) (g) (i), the court must exclude

“the period of delay resulting from a continuance granted at the request of a district attorney if . . .

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Related

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2024 NY Slip Op 51037(U) (Bronx Criminal Court, 2024)

Cite This Page — Counsel Stack

Bluebook (online)
48 Misc. 3d 810, 9 N.Y.S.3d 767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-silverstri-nycrimct-2015.