The People of the State of New York v. Alberto Morris, Defendant. (2026)

The defendant is charged with Penal Law § 140.25(2) Burglary in the Second Degree and other related charges in the indictment. On March 5, 2026, the defendant moved for an order pursuant to Criminal Procedure Law §§ 210.20(1)(g); 30.30(1)(a), and the New York State and United States Constitutions, on the grounds that defendant's speedy trial rights were denied by the People's failure to produce the defendant from federal custody. The People oppose by papers dated, March 27, 2026, on the grounds that only 52 days chargeable time had accrued, and that the People have exercised due diligence in producing the defendant. For the reasons set forth below, the defendant's motion to dismiss the accusatory instrument is granted.

Procedural Background and Relevant Facts

On November 19, 2024, the defendant was arraigned on a felony complaint in Kings County Criminal Court. He was released under supervision and the matter adjourned for grand jury action.

On December 19, 2024, a Kings County Grand Jury indicted the defendant on charges of Burglary in the Second Degree (P.L. § 140.24[2]); Robbery in the Second Degree (P.L. § 160.05); Overdriving, Torturing and Injuring Animals (AGM § 353); and other related offenses. It's alleged that on or about December 1, 2024, the defendant forcibly took the complainant's apartment keys, went to said apartment, damaged property and forcibly threw the complainant's dog off the fourteenth-floor balcony.

On January 13, 2025, the defendant was arraigned on the indictment, and defense counsel requested inspection of the grand jury minutes. By decision dated March 17, 2025, the Hon. Jacob Moses found the minutes to be sufficient and declined to reduce or dismiss any charges. On March 20, 2025, defense counsel, at the time, informed the court and the People that defendant was in Immigration Custom Enforment ("ICE") custody, and the matter was adjourned to April 2, 2025.

Defendant was not produced on April 2, 2025, and the People requested a warrant be issued, the court was declined to do so. The People were ordered to do a writ, and the matter adjourned to May 6, 2025. On that date, the defendant was not produced. The People claimed that on May 5, 2025, speaking with a representative from the New York Police Department/Federal Bureau of Investigation ("NYPD/FBI") Task Force that ICE agreed to produce the defendant on the condition that they receive notice at least two weeks of defendant's scheduled court appearances. The court determined that the People as of May 6, 2025, made a good faith effort to produce the defendant and as a result adjourned the matter to May 29, 2025.

On May 29, 2025, at the calendar call the defendant was not produced, and the People renewed the argument for a bench warrant. The case was second called, and the defendant was produced "on consent by the federal authorities via a writ" (See People's Opp., exhibit 3). The People requested defendant's bail status be changed to remand to ensure defendant's attendance, and defense counsel objected by stating there is no subsection of CPL 530.60 that authorizes remand in these circumstances. Bail was set and the matter was adjourned to July 29, 2025.

On July 1, 2025, counsel for the defendant filed a writ of habeas corpus, which was heard before another justice of this court, who changed the defendant's securing order to set $1 nominal bail. The defendant was subsequently taken back into ICE custody, and transferred out of the jurisdiction. On July 29, 2025, the defendant was not produced, and the matter was adjourned to September 22, 2025. On September 22, 2025, defendant was produced, and the matter was adjourned to November 13, 2025.

After September 22, 2025, through the several court appearances of November 13, 2025, January 5, 2026, February 16, 2026, March 26, 2026, April 23, 2026, May 14, 2026, including the date of this decision the defendant has yet to be produced. The People as of January 10, 2025, were charged a total of 52 days by the filing of their Statement of Readiness. The Court as of May 6, 2025, deemed the People made a good faith effort in attempting to obtain defendant's appearance.

The issue is whether the post readiness delays from July 1, 2025, to July 29, 2025, and the dates of September 13 through the filing of the instant motion on March 5, 2026, are chargeable to the People for their failure to obtain defendant's appearance. The court concludes the People should be charged for the post readiness delays.

I. Applicable Law

Pursuant to CPL § 30.30(1), the applicable speedy trial period is determined by the highest offense charged in the accusatory instrument. Here, at least one of the offenses charged is a felony; thus, the People are required to state their readiness for trial within six months of the commencement of the criminal action, less any excludable time (CPL § 30.30[1][a]), in this case, 181 days. A "criminal action" commences with the filing of an accusatory instrument against a defendant in a criminal court, this includes the filing of all further accusatory instruments directly derived from the initial one, and terminates with the imposition of sentence of some other final disposition in a criminal court where the last accusatory instrument was filed in the case (CPL § 1.20[16]; see CPL § 1.20[17]]; People v. Osgood, 52 NY2d 37, 43 [1980] (the filing of the felony complaint commences the criminal action); see People v. Lomax, 50 NY2d 351, 355-356 [1980] (the point of commencement of an action for speedy trial purposes is the date on which the first accusatory instrument was filed)).

Pursuant to CPL § 30.30(4)(e), "the period of delay resulting from detention of the defendant in another jurisdiction provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial" is excusable speedy trial time. The People, in order to obtain the excludable time under CPL § 30.30(4)(e) "must prove that they exercised due diligence to obtain his presence." People v Brown, 114 AD2d 418, 419 (2d Dept 1985).

Post-readiness time may be chargeable to the People where they fail to produce for trial a defendant in custody (People v. Anderson, 66 NY2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231 [1985]; People v. Jones, 105 AD2d 179, 483 N.Y.S.2d 345 [2nd Dept., 1984] affd 66 NY2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231 [1985]; People v. Crosse, 52 Misc 3d 1224(A), 2016 WL 4691587 [Bronx Crim. Ct., 2016]). "The absence of a defendant constitutes an obvious impediment to the commencement of trial and, thus, to the People's continued readiness to proceed (citations omitted)" (People v. Daniels, 217 AD2d 448, 630 N.Y.S.2d 5 [1st Dept., 1995]). People v Nes-Rodriguez, 88 Misc 3d 702, 704-05 [Sup Ct Nass. Co. 2025].

a. Due Diligence

Due diligence "is a familiar and flexible standard that requires the People "to make reasonable efforts' to comply with statutory directives" (People v Bay, 41 NY3d 200, at 211, quoting People v Bolden, 81 NY2d 146). In Bay, the Court of Appeals outlined with decent precision the relevant factors for a due diligence analysis to satisfy the new statutory scheme of CPL 245 discovery rules.

Case law provides some guidance on the appropriate inquiries. For example, it is well established that the mere filing of a detainer does not satisfy CPL 30.30 due diligence requirements. (See, People v. Billups, 105 AD2d 795, 481 N.Y.S.2d 430 [2d Dept.1984]; People v. Melendez, 92 AD2d 904, 459 N.Y.S.2d 900 [2d Dept.1983].)

In addition, the People are appropriately charged speedy trial time when they fail to pursue statutorily prescribed methods for securing the presence of a defendant detained in federal custody and they have not been unequivocally advised by the federal prosecutor that the defendant will not be released prior to trial or sentencing (People v Scott, 242 AD2d 478, 479 [1st Dept 1997]).

However, the courts have found that even after such advisement, the People's requirement to make reasonable efforts to secure defendant's presence is not extinguished. (See People v. Gonzalez, 235 AD2d 366, 366, 653 NYS2d 321 (1st Dep't 1997), lv denied, 89 NY2d 1093, 660 NYS2d 387 (1997) (holding that the People exercised due diligence despite not obtaining a writ of habeas corpus ad prosequendum where federal authorities unequivocally advised that defendant would not be released prior to federal trial and the People regularly monitored the status of the federal prosecution).

These cases stand for the proposition that due diligence in this context is measured by the People's affirmative utilization of available statutory mechanisms and the continued efforts to secure the defendants appearance from federal custody. To that end, factors to consider may include (1) whether the People utilized the statutory procedures available to secure defendant's appearance, (2) were the efforts more than merely lodging a detainer, (3) whether the People were unequivocally advised that production was impossible, (4) if advised on the futility of efforts at production, what if any efforts did the People continue to undertake, and lastly, (5) the substance of the record outlining diligence.

b. CPL 580

The Interstate Agreement on Detainers ("IAD"), codified in CPL § 580.20, is a compact among 48 states, the federal government, and the District of Columbia. Through its procedural mechanisms, a participating state, such as New York, may gain custody of a prisoner serving a sentence in another state or in a federal facility, so as to try him or her on pending criminal charges. (See § 9:53. Interstate agreement on detainers (CPL § 580.20), 7 NY Prac., New York Pretrial Criminal Procedure § 9:53 [2d ed.]).

The first procedure was to file a detainer along with a writ for temporary custody to the federal government pursuant to CPL § 580.20(II)(a), (iv)(a), (V)(a). The other procedure, pursuant to CPL § 580.30 was for the People to petition the superior court with jurisdiction over the defendant, which was Kings County Supreme Court, to issue a writ of habeas corpus ad prosequendem requesting the Attorney General of The United States to produce the defendant at that said Court. The People never challenged that they failed to use CPL § 580 to obtain defendant attendance for his scheduled court appearances. See People v Scott, 242 AD2d 478, 479 [1st Dept 1997].

The statutory procedures was not used to secure the defendant's attendance. The People's failure to follow the statutory scheme for securing the defendant's presence in court exposes them to a due-diligence challenge. The People concede they were made aware that the defendant was in ICE custody on March 25, 2025, and that a representative from the government on May 6, 2025, verbally agreed that ICE would produce defendant if the People met their precondition agreement to provide at least two weeks' notice to produce defendant.

Instead of complying with the required process, the People relied on a verbal assurance from ICE, an agency that has allegedly been disregarding the rule of law, to produce the defendant.¹ Further, during oral argument on May 14, 2026, the People conceded that ICE had ignored their electronic mail messages, even after defense counsel filed the motion to dismiss on March 5, 2026, and yet ignored the process to secure defendant's appearance under CPL § 580.

c. CPL 30.30 Calculation

July 1, 2025 — July 29, 2025

The court finds that July 1, 2025, to July 29, 2025, court appearance should be charged to the People for the unexplained delay in transporting defendant to ICE custody. Thus, 28 days were charged to the People.

November 13, 2025 — March 5, 2026

The People failed to detail their due diligence in their effort to obtain defendant's presence. The People in support of their opposition for a dismissal submitted just two electronic mail messages prior to defendant's motion of March 5, 2026, to show due diligence. The first electronic mail message was dated January 8, 2026, to an ICE mailbox in Chicago which was an introductory message requesting temporary custody of defendant, for his February 19, 2026, court appearance. As a result of not receiving a response to the January 8, 2026, electronic mail, the People on January 20, 2026, followed up with another electronic mail request. After the People failed to secure defendant's attendance for February 19, 2026, court appearance, counsel for the defendant filed on March 5, 2026, the instant motion. The two electronic mail messages submitted provide insufficient evidence to demonstrate that due diligence was excised.

The court appearances from November 13, 2025, through the filing of the instant motion of March 5, 2026, should be charged to the People. Thus, 112 days are charged to the People for this period.

Consequently, the People are charged a total of 140 days of post readiness delays coupled with the 52 days previously charged from the filing of their Statement of Readiness leaving a total of 192 days charged to the People.

The People, as counsel for the defendant argued, neglected to employ the procedures enacted by the legislature under CPL § 580 to obtain the presence of a defendant held in federal custody.

In addition, the court finds that when the People produced the defendant on May 29, 2025, they were subjected to the anti-shuttling provision of the IAD,² which mandates dismissal with prejudice if a prisoner is returned prior to disposition of the matter.

Conclusion

Accordingly, defendant's motion to dismiss pursuant to CPL 30.30 (1)(a) is hereby granted and further ordered the instant indictment is dismissed with prejudice.

This constitutes the decision and order of the court.

Date: June 5, 2026

Brooklyn, New York

Hon. Patrick Hayes-Torres, A.J.S.C.

FOOTNOTES

1.   See Judge Gary R. Brown decisions from the Eastern District of New York grappling with ICE inability to follow procedures and the Unites States Constitution. See 25-CV-6773; 26-CV-0766.

2.   The IAD, requires dismissal with prejudice where a prisoner obtained pursuant to the agreement is returned to the sending jurisdiction before trial is completed (CPL 580.20, art IV(e)). See also Alabama v Bozeman, 533 US 146, 153-57 (2001) (holding that the Interstate Agreement on Detainers requires dismissal of pending charges when a prisoner is returned to the original place of imprisonment before trial, even when the return is brief).

Patrick Hayes-Torres, J.