The People of the State of New York, v. Leroy Williams, Defendant. (2024)

This case is on remand from the Appellate Division Fourth Department so that this Court may "rule on that part of defendant's omnibus motion seeking dismissal of the indictment pursuant to CPL 30.30 based on defendant's contention that the executive orders tolling that statute were unconstitutional" (People v Williams, — AD3d — [4th Dept 2024], 2024 NY Slip Op 03275). The issue was fully briefed by the parties and the Court considered the following papers; Defendant's Omnibus Motion, filed January 19, 2020, the People's Notice of Cross Motion and Answering Affirmation dated January 29, 2021, Defendant's Response, filed March 2, 2021, and the People's Supplemental Answering Affirmation dated July 17, 2024, Defendant's Remittal Memorandum, filed July 1, 2024, and the People's Reply to Defendant's Remittal Memorandum, filed July 12, 2024.

"CPL 30.30 requires that the People be prepared to proceed to trial within six months, plus excludable time, from the commencement of the criminal action. The statute does not address problems involving speedy trial rights or due process in a constitutional sense. Rather, it is purely a statutory "readiness rule." It was enacted to serve the narrow purpose of insuring prompt prosecutorial readiness for trial, and its provisions must be interpreted accordingly" (People v Sinistaj, 67 NY2d 236, 239 [1986]).

Executive Law 29-a[1] provides that "the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster." Section 29-a further provides that "no suspension shall be made for a period in excess of thirty days" but such may be extended an additional thirty days at a time, and that all suspensions shall be to safeguard the health and welfare of the pubic and "reasonably necessary to the disaster effort" (EL 29-a[2][a-b]). In addition, "any such suspension order shall provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the disaster action deemed necessary" (EL 29-a[2][e]). On March 7, 2020, Governor Andrew Cuomo issued Executive Order ("EO") 202 declaring a state disaster emergency for the entire state of New York related to documented travel related and community contact transmission of COVID-19 that were expected to continue.

On March 20, 2020, EO 202.8 tolled Criminal Procedure Section 30.30 time for a period of 30 days. "The Governor issued Executive Order 202.8 based upon his determination that compliance with these statutory provisions will prevent, hinder, or delay action necessary to cope with the disaster emergency, and that the temporary suspension of these provisions is necessary to facilitate the most timely and effective response to the COVID-19 emergency disaster" (People v Hood, 2020 NY Misc. LEXIS 1377, *4, April 4, 2020). "On March 22, 2020, the Chief Administrative Judge of the Courts issued Administrative Order 78/20, effectively halting all court proceedings that do not involve essential matters. The list of essential matters accompanying AO 78/20 identifies five essential criminal matters: (1) arraignments; (2) bail applications, reviews and writs; (3) temporary orders of protection; (4) re-sentencing of retained and incarcerated defendants; and (5) essential sex offender registration act matters" (id).

This order was renewed every 30 days essentially on the same terms by subsequent orders EO's 202.14, 202.28, 202.38, 202.48, and 202.55. Finally, on September 4, 2020, EO 202.60 provided that "[t]he suspension of Section 30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial time limitations remain suspended in a jurisdiction until such time as petit criminal juries are reconvened in that jurisdiction" (Executive Order 202.60, September 4, 2020). The first petit jury in Monroe County convened on September 15, 2020. The executive branch's power to temporarily suspend these statutory procedural rights is not unlimited, and could have been terminated at any point by concurrent resolutions of the New York State Senate and Assembly [Executive Law § 29-a(4)].

Defendant argues that after May 8, 2020, the Executive Orders "that continued to suspend CPL 30.30 time created unconstitutional overreach and therefore, was unauthorized by law" (Defendant's Response Brief, filed March 2, 2021, ¶ 26). Defendant asserts that "[t]he order was not necessary to assist with coping with a disaster. Subdivision [CPL 30.30] 4(g) itself can address disaster emergencies to the extent that they bear on the People's ability to get ready for trial" (id.).

Defendant further asserts that after May 8th "there was no impediment to the People's ability to commence Grand Jury presentation and therefore, there was certainly no basis for an executive order to excuse any further delay in such presentations." Defendant argues that after May 8, 2020, the Executive Orders "that continued to suspend CPL 30.30 time created unconstitutional overreach and therefore, was unauthorized by law" (Defendant's Response Brief, filed March 2, 2021, ¶ 27).

Defendant's argument is one asserting that the Governor's "overreach" was unconstitutional as violating the principle of separation of powers. The Court does not agree.

"[Executive Law 29-a] provides that the Governor may "temporarily suspend specific provisions of any statute . . . during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster." The world-wide COVID-19 pandemic certainly qualifies as a "disaster" under the Executive Law (Executive Law § 20(2)(a)["disaster" means occurrence or imminent, impending or urgent threat of wide spread . . . epidemic [or] disease outbreak])." In view of the fact that the purpose of CPL 30.30 is to serve the narrow purpose of prosecutorial readiness, and given the severe restrictions upon the People's ability to be ready for trial in the weeks and months following the declaration of the disaster emergency  ¹ , the Governor's Executive Orders to suspend compliance with rules that "would prevent, hinder, or delay action necessary to cope with the disaster . . . or aid in coping with such disaster" "were consistent with the intent of the Legislature and are therefore constitutional" (People v Haneiph, 191 Misc 2d 738, 739 [King's Co. Crim. Ct., 2002][upholding constitutionality of executive orders suspending CPL § 30.30 after the September 11 terrorist attacks]; see Forman v Haight, 2020 NYLJ LEXIS 1418, ["Executive Law 29-a clearly authorized the Governor to take such action in light of the COVID-19 pandemic and declared state of emergency"]).

Defendant further contends the suspension of CPL 30.30 time was unconstitutional because it did not provide the minimum deviation from the requirements of the statute under § 29-a[2][e]. Defendant relies on People v Zeolli, 69 Misc 3d 927 [Cohoes City Ct, 2020]) and reasons that "after courts adjusted to virtual appearances, utilized filing via EDDS, and after grand juries began convening in Monroe County by July 13, 2020 there was no further need to suspend CPL 30.30" (Defendant's Remittal Memorandum, p. 4-5). The Court is not persuaded.

People v Zeolli concerns adjournments in contemplation of dismissal and found only that "with courts having had adjusted to the reality of the pandemic, the executive orders could no longer be considered sufficiently "specific" as it relates to CPL 170.55 (People v Zeolli, 69 Misc 3d 927, 937). Here, defendant raises no "specificity" argument and Zeolli is not persuasive.

The Court further rejects defendant's linkage of declaring readiness for trial with the ability to seat a grand jury. Such is not supported by the executive's historical and present view of necessity when suspending compliance with certain statutes, and the legislature's ratification of this view. Historically, the Governor has, as in the present case, intertwined the need to declare readiness for trial with the ability to actually conduct a trial (9 NYCRR 5.113 et seq. suspending certain speedy trial provisions of CPL 30.30 in response to the September 11, 2001, terrorist attack on the World Trade Center; see People v Haneiph, 191 Misc 2d 738, 739). The legislature both accepted this linkage in the past, by not changing the law after tolling of CPL § 30.30 in the wake of the attack on the World Trade Center, and in the present case by not acting to restrict suspension of CPL § 30.30 time via Executive Law § 29-1(4) during the COVID-19 pandemic. Executive Order 202.60 is driven by this relationship, making lifting the suspension of CPL 30.30 time dependant on the ability to conduct a jury trial in particular jurisdiction. As noted above, in Monroe County, the ability to seat a petit jury safely did not occur until September 15, 2020.

It was well within the authority of the executive, as granted by legislature in EO Section 29-a, to determine those measures necessary to respond to a disaster emergency and this record provides no basis on which this Court could declare that compliance with such provisions would not prevent, hinder, or delay action necessary to cope with the disaster taken by the Governor or that they were not prudent to safeguard the health and welfare of the pubic and reasonably necessary to the disaster effort. Accordingly, the Court also rejects defendant's contention that compliance with CPL 30.30 after May 8, 2020, would not prevent, hinder or delay action necessary to cope with the disaster (Defendant's Remittal Memorandum, p. 5).

Similarly, CPL § 30.30(4)(g) does not, in a statewide disaster context, obviate the need for the Executive Orders. While CPL § 30.30(4)(g) provides that the People may assert that there were "exceptional circumstances" to excuse the failure to comply with the statute, it would be vastly inefficient to require such a showing in every case in every jurisdiction in New York where the Executive Law provides a much more efficient and uniform system in which to respond to a broad public emergency such as the COVID-19 pandemic. Defendant's assertion that CPL § 30.30(4)(g) obviates the need for the Executive Orders at question here would essentially require courts to make individual judgments in every case, in every county across the state, and whether on a particular date, or range of dates, that the COVID-19 health threat was sufficient to excuse compliance with CPL § 30.30.

Defendant also interprets EO 202.28 to place the burden on the People to show why a grand jury could not have been empaneled, and if such a showing is not made, the Executive Orders cannot be relied upon to toll CPL § 180.80, and by extension CPL § 30.30 time. Such a reading is not justified.

Executive Order 202.28 provides that the inability to empanel a grand jury is "good cause" under CPL § 180.80(3). This is not the equivalent of a statement burdening the People to show good cause why a grand jury could not be empaneled. The order simply provides that the inability to empanel a grand jury in the jurisdiction, in the context of the declared state of emergency, constitutes good cause. Moreover, defendant here incorrectly assumes, in the course of placing this burden on the People, that it is within the sole discretion of the Monroe County District Attorney to empanel a grand jury in Monroe County. This is incorrect, especially in the context of this unprecedented health and public safety emergency where the ability to conduct court operations involved coordination with State and County health and other authorities. Moreover, a grand jury requires jurors, which are summoned by the Office of the Commissioner of Jurors, not by the District Attorney's office. In Monroe County, the Commissioner was not able to safely summon grand jurors until July 13, 2020.

It is therefore,

ORDERED that the Executive Orders issued by Governor Cuomo temporarily tolling CPL 30.30 time are constitutional and defendant's motion to dismiss the indictment, in accordance with the above and in conjunction with the Court's previous ruling, is denied.

The above constitutes the Decision and Order of the Court.

Dated: July 22, 2024.

Rochester, New York

HONORABLE CHARLES A. SCHIANO, JR.

Supreme Court Justice

FOOTNOTES

1.   "The COVID-19 pandemic has spread across the globe with lightning speed, wreaking havoc on the global economy and threatening to overwhelm public health systems . . . government officials and infectious disease experts have developed a strategy to 'flatten the curve' in an attempt to save countless lives. As we have come to learn, 'self-isolation' is one of the cornerstones of that strategy" (People v Hood, 2020 NY Misc. LEXIS 1377, *10-11 [April 4, 2020).

Charles A. Schiano, Jr., J.