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The PEOPLE of the State of New York v. Shawn AIKEN, Defendant
The defendant's motion for orders releasing the defendant pursuant to CPL § 30.30(2)(a) and dismissing the indictment pursuant to CPL § 210.20(1)(g) are denied.1 An incarcerated felony defendant must be released on bail or on recognizance if the People are not ready for trial within 90 days from the commencement of incarceration (CPL § 30.30[a]). A felony indictment must be dismissed upon motion of the defendant where the People are not ready for trial within six months of the commencement of the criminal action (CPL § 30.30[a]). This criminal action commenced with the filing of a felony complaint on March 21, 2021. The defendant has been incarcerated since that date. The People stated ready for trial on March 30, 2022, 374 days later. The Court finds, however, that 300 days between the commencement of the criminal action and the People's statement of readiness must be excluded, leaving only 74 days charged to the People. The defendant's motion is therefore denied.
The time periods contained in CPL § 30.30 were tolled by Executive Order during the period of March 21, 2021 to May 7, 2021, excluding those 47 days from calculation. On December 30, 2020, the Governor enacted Executive Order 202.87, which declared that CPL § 30.30 was “suspended to the extent necessary to toll any periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment” (Executive Order [A. Cuomo] No. 202.87 [9 NYCRR 8.202.87]). The Governor extended this provision of 202.87 through subsequent Executive Orders, before letting it lapse on May 23, 2021. The order was in effect when the defendant was arraigned on the felony complaint on March 21, 2021. It remained in effect while the matter was pending in the Criminal Court of the City of New York, and adjourned to April 9, 2021 in the Supreme Court of the State of New York for superior court arraignment. It remained in effect while the Department of Corrections twice failed to produce the defendant to a video conference booth for arraignment by electronic video, and the Court eventually adjourned the matter to May 7, 2021. On that day, the Court arraigned the defendant on the indictment, and the Executive Order no longer applied.
The Court rejects the defendant's argument that the Executive Order does not apply to cases that had been presented to a Grand Jury. The defendant argues that because the Order uses the phrase “to the extent necessary,” and the relief afforded by the Order was “necessary only while Grand Juries could not be convened because of the pandemic,” it cannot apply here, where the Grand Jury returned an indictment on March 24, 2021 (Def.’s affirmation, ¶ 31[b][ii], quoting People v. Demonia, 74 Misc 3d 752, 758 [Ulster County Ct 2022]). The defendant's argument fails—first grammatically, second by comparison to previous Executive Orders, and third as a matter of fairness.
First, the defendant confuses the meaning of the sentence by misplacing the modifier, “to the extent necessary.” The Order reads:
“Section 30.30 and Section 190.80 of the criminal procedure law are suspended to the extent necessary to toll any time periods contained therein for the period during which the criminal action is proceeding on the basis of a felony complaint through arraignment on the indictment or on a superior court information and shall not be tolled thereafter.”
(Executive Order [A. Cuomo] No. 202.87 [9 NYCRR 8.202.87]). English grammar permits sentences even more labyrinthine than 202.87's 57-word construction, but with complexity often comes confusion. “To the extent necessary” is an adverbial prepositional phrase. Such phrases traditionally appear after the word they modify.2 “To the extent necessary,” therefore, modifies “suspended,” not “toll.” It explains how sections 30.30 and 190.80 are suspended—not in their entirety but “to the extent necessary.” The infinitive “to toll,” used as an adverb, answers the question, “necessary how?” Necessary to toll their time periods. These clarifications matter, given CPL § 30.30 contains motions to dismiss (30.30, ), readiness inquiries by the court (30.30, [5-a]), appeals of motions to dismiss (30.30), and oral argument of motions for release (30.30), in addition to time periods. The tortured interpretation espoused by the defendant, that “to the extent necessary” modifies “to toll,” the adverb it precedes, does not comport with common grammar.3
Second, Executive Order 202.87 does not require a showing of necessity to toll time periods because it does not explicitly condition the tolling on necessity. The defendant relies on the addition of the phrase “to the extent necessary” to demonstrate that, unlike prior Executive Orders, this Order requires a showing of necessity. The defendant asks the Court to consider only what has been added and overlook what has been removed. In fact, the previous Orders demonstrate that Governor Cuomo was explicit when he intended tolling to be conditional (see e.g. Executive Order [A. Cuomo] Nos. 202.28 [9 NYCRR 8.202.28] [requiring good cause due to inability to empanel grand jury to suspend CPL § 180.80 and 190.80]; 202.48 [9 NYCRR 8.202.48] [suspension of CPL § 180.80 and 190.80 dependent upon whether grand jury empaneled]; 202.60 [9 NYCRR 8.202.60] [suspension of CPL § 30.30 until petit juries reconvened in jurisdiction]; 202.67 [9 NYCRR 8.202.67] [suspension of CPL § 30.30 differentiated by county]). Because the only conditional factor explicitly stated in 202.87 is the procedural posture of the case, the Court declines to infer an additional requirement.
Third, during the COVID-19 pandemic every public agency in New York State, including institutional defenders, relied upon the Governor's Executive Orders when making difficult decisions regarding staffing, virtual operations, and prioritizing resources. There is no reason to believe that Executive Order 202.87 meant to address only the unavailability of grand juries. Certainly the District Attorney reasonably relied upon the plain language of the Order when making decisions regarding virtual and in-person staffing levels, which witnesses to bring to the office, and which cases to present to the limited grand juries. Likely the Department of Corrections also relied upon it when dealing with staffing shortages, lack of adequate video conferencing, inmate quarantines, and other logistical concerns. To wring an ex post facto necessity requirement from the otherwise plain language of the Order punishes those agencies for their reliance, and defeats the purpose of the emergency order.
The Court rejects the defendant's argument that a showing of necessity is required to toll speedy trial time under Executive Order 202.87. This interpretation would be inconsistent with common grammar, the history of COVID-19 Executive Orders, and fundamental fairness (People v. Henriquez-Ulintz, ––– Misc 3d ––––, 2022 Slip Op 50412[U] [Piermont Just Ct 2022]; People v. Aquino, 74 Misc 3d 1147, 1151 [Sup Ct NY County 2022]). To the extent other courts have reached a different conclusion, this Court respectfully disagrees (contra People v. Fuentes, ––– Misc 3d ––––, 2022 Slip Op 22172 [Westchester County Ct. 2022]; People v. Pierna, 74 Misc 3d 1072, 1080 [Crim Ct, Bronx County 2022]; People v. Demonia, 74 Misc 3d 752, 758 [Ulster County Ct. 2022]; People v. Williams, 73 Misc 3d 1205[A] [Mt. Vernon City Ct. 2021]; People v. Taback, 74 Misc 3d 303, 308 [Orange County Ct. 2021]).
The 101 days from May 7, 2021 to August 16, 2021 were spent in motion practice, and excluded from calculation (CPL § 30.30[a]). The defendant failed to file motions before the original decision date, July 26, 2021, which cannot be attributed to the People. The Court set a second motion schedule, directing the People to file and serve their response by August 16, 2021. The People failed to do so.
The People did not respond to the defendant's omnibus motions until October 1, 2021, and are charged with that 46-day period. Although motion practice is ordinarily excludable (CPL § 30.30[a]), the People's delay in filing a response prevents them from taking full advantage of this exclusion (People v. Delosanto, 307 AD2d 298, 299 ).
Nor can the People exclude the time period beginning September 21, 2021, under CPL § 30.30[f]’s exclusion of “the period during which the defendant is without counsel through no fault of the court.” The defendant's assigned Legal Aid Society attorney was ill and not present September 21, 2021, but a supervisor from the Legal Aid Society stood and represented the defendant (People v. Alvarez, 194 AD3d 618, 620 ). The Legal Aid Society's need to reassign the case internally does not amount to the defendant being “without counsel.”
The Court's consideration of the defendant's omnibus motions from October 1, 2021 to October 20, 2021 excludes 19 days from calculation. The Court rejects the defendant's argument that the People should be charged from their missed response date on August 16, 2021 until the Court's decision on October 20, 2021. The statute clearly excludes from calculation “the period during which [motions] are under consideration by the court” CPL § 30.30[a]).
The 77-day adjournment to January 5, 2022 for trial, following the October 20, 2021 decision is excludable. The People are entitled to a reasonable adjournment to prepare for trial, following the issuance of a decision on omnibus motions (People v. Green, 90 AD2d 705, 706 ). This exclusion is based upon C.P.L § 30.30(4)(a) and applies irrespective of the People's failure to file a certificate of compliance or statement of readiness.
The Department of Corrections’ failure to produce the defendant on January 5, 2022 due to his presence in COVID housing excludes the 41-day adjournment to February 15, 2022. The People have provided documentary evidence indicating the defendant was “unable to appear” due to being lodged in the “AE Housing Area.” The People affirm without attribution that the Department of Corrections placed inmates in that housing area after they had been exposed to COVID-19, or while they awaited COVID-19 testing. The People further affirm, again without attribution, that the defendant's presence could not have been secured through any amount of due diligence on their part. The Court takes judicial notice that in January 2022 individuals, including incarcerated defendants, who had been exposed to COVID-19 were not permitted to enter the courthouse unless they were fully vaccinated or had recently recovered from COVID (Limited Filings — Coronavirus and the NY State Courts, https://web.archive.org/web/20211228213522/https://www.nycourts.gov/limited-filings.shtml [last accessed May 23, 2022]). The defendant's absence cannot be attributed to the People under these circumstances (CPL § 30.30[c][i]).
The People were not ready for trial on February 15, 2022, and are responsible for the 28-day adjournment to March 15, 2022. The People concede this time period should be charged to them.
The defendant's refusal to come to court on March 15, 2022 excludes the 15 days until the People stated ready for trial on March 30, 2022. The People have provided a video exhibit that they affirm came from the New York City Department of Corrections. In the video, a Corrections Officer reads out the date, March 15, 2022, the time, 8:20 a.m., and the defendant's name and NYSID number before asking a man next to him, presumably the defendant, whether he is refusing to come to court. The man replies, “Yeah, I'm refusing.” Under these circumstances, the defendant's absence was voluntary and cannot be attributed to the People (CPL § 30.30[c][i]).
The People have not been responsible for delay since their statement of readiness (see People v. Cortes, 80 NY2d 201, 210  [post-readiness delay only chargeable when caused by People's inability to proceed with trial]).
The Court finds the People responsible for only 74 days of time under CPL § 30.30. The People have met their burden of demonstrating that 300 days prior to their statement of readiness must be excluded. The remaining 74 days are insufficient to require release of the defendant from custody (CPL § 30.30[a]) or dismissal of the indictment (CPL § 30.30[a]). The defendant's motions are denied.
This constitutes the Decision and Order of the Court.
1. Though the defendant filed a written motion for release pursuant to CPL § 30.30(2)(a), he requested it be decided upon oral argument, pursuant to CPL § 30.30(8), without a written response from the People. The Court conducted a prompt hearing and on April 14, 2022 issued a preliminary decision, denying the defendant's motion. The People have secured minutes and responded in writing, and this decision supersedes the April 14, 2022 decision.
2. They may also appear at the very beginning or very end of the sentence (see How to Arrange Prepositional Phrases, https://www.thoughtco.com/arrange-and-rearrange-prepositional-phrases-1689685 [last accessed June 3, 2022]
3. “Adverb prepositional phrases that modify adjectives and adverbs must go after the words they modify” (English Grammar 101 — Prepositions, Lesson 8: Adjective or Adverb Prepositional Phrases, https://www.englishgrammar101.com/module-7/prepositions/lesson-8/adjective-or-adverb-prepositional-phrases [last accessed June 3, 2022]).
Diane Kiesel, J.
Response sent, thank you
Docket No: Indictment No. 591/2021
Decided: June 08, 2022
Court: Supreme Court, New York County, New York.
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