PEOPLE v. SANTIAGO (2023)

Defendant, in a motion dated December 13, 2022, seeks to renew and reargue the Court's decision denying dismissal of the indictment under C.P.L. § 30.30. The Court grants the defendant leave to renew and reargue to the extent that it has reviewed the current motion papers and exhibits submitted by defendant and the People, as well as the prior motion practice. After careful consideration, the Court declines to disturb its decision dated November 17, 2022, denying dismissal of the indictment under C.P.L. § 30.30, for the reasons set forth below.

Background

The defendant is charged with, inter alia, Burglary in the Second Degree. The defendant was arraigned in Criminal Court on August 6, 2019, at which time the criminal action against him was commenced (People v. Osgood, 52 NY2d 37 [1981]).

In a motion dated September 30, 2022, the defendant moved for an order dismissing the indictment pursuant to C.P.L. § 30.30, on the grounds that over six months elapsed since the commencement of the criminal action against him. In their response dated November 4, 2022, the People opposed the defendant's motion, arguing that the delay chargeable to the People is within the statutory limit.

In a decision dated November 17, 2022, this Court denied defendant's motion for an order dismissing the indictment, finding the total time chargeable to the People to be 173 days, which is within the six-month statutory period.

The Current Motion

In a motion dated December 13, 2022, the defendant now moves to renew and reargue his motion to dismiss the indictment under C.P.L. § 30.30, stating that the People failed to answer ready for trial within 180 days of the commencement of this action, reiterating prior arguments, and citing additional delays that the defendant argues are attributable to the People.

In their response dated December 20, 2022, the People again opposed the defendant's motion, arguing that the delays constitute excludable time, that no additional time should be chargeable to the People, and that this Court's prior decision charging 173 days of time to the People should be confirmed.

Discussion

A motion for leave to renew must be “based upon new facts not offered on the prior motion that would change the prior determination or ․ demonstrate that there has been a change in the law that would change the prior determination,” and must “contain reasonable justification for the failure to present such facts on the prior motion.” C.P.L.R. § 2221[e]. The decision to grant renewal rests in the discretion of the court. See Eskenazi v. Mackoul, 92 AD3d 828, 828 [2d Dept 2012].

The Court has granted defendant's motion to renew and reargue to the extent that it has reviewed the current motion papers and exhibits submitted by both defendant and the People, as well as the prior motion practice. For the reasons set out below, the Court again denies defendant's motion to dismiss the indictment under C.P.L. § 30.30.

A motion for leave to reargue must be based “upon matters of fact or law allegedly overlooked or misapprehended by the court” in determining the case. C.P.L.R. § 2221[d][2]. A motion to renew “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.” Renna v. Gullo, 19 AD3d 472, 473 [2d Dept 2005]; Rubinstein v. Goldman, 225 AD2d 328, 329 [1st Dept 1996]; see also People v. D'Alessandro, 13 NY3d 216, 219 [2009] [“It is well settled that a motion to reargue is not an appropriate vehicle for raising new questions ․ which were not previously advanced”]. In other words, a motion to reargue “is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented.” McGill v. Goldman, 261 AD2d 593, 594 [2d Dept 1999].

In his current motion, defendant reiterates arguments from his prior motion in support of his argument for dismissal under C.P.L. § 30.30. Namely, the defendant enumerates many of the same delays which he claims are attributable to the People, which he previously argued in his motion dated September 30, 2022. The only delays enumerated in defendant's motion to reargue which were not previously argued in his earlier motion, are the periods between (1) October 24, 2022, through November 4, 2022, (2) November 29, 2022, through December 6, 2022, and (3) December 6, 2022, through December 9, 2022, respectively.

In reviewing the prior and current motion papers and exhibits, this Court finds no misapprehension of law or fact in its decision dated November 17, 2022; therefore, the Court confirms its findings with respect to delays prior to October 24, 2022. As to subsequent delays, the Court makes the following findings regarding periods of chargeable and excludable time:

October 24, 2022 — November 4, 2022

The defendant, in his motion to renew and reargue, asserts that the period between October 24, 2022, through November 4, 2022, should be chargeable to the People because the People asked for an extension of time to file a response to his motion to dismiss. The People, on the other hand, argue that this time should not be chargeable to them because the People asked the Court for additional time to respond, as they were waiting for minutes from court proceedings in order to respond to said motion and the Court granted the People an extension to November 3, 2022, when the People were required to file their response.

As to the period between October 24, 2022, through November 3, 2022, this time is excludable from speedy trial computations, since the People requested, and the Court granted, additional time to the People in which to respond. As a matter of law, motion practice is excludable from speedy trial computations. (See, People v. Worley, 66 NY2d 523 [1985]; CPL 30.30[4][a]; see also, People v. Reed, 19 AD3d 312, 315 [1st Dept 2005], appeal denied 5 NY3d 832 [2005], which held that “CPL 30.30(4)(a) applies to all pretrial motions concerning the defendant, not just defense counsel”). Furthermore, in answering a speedy trial motion, the delay resulting from the unavailability of court minutes is excludable. People v. Holden, 260 AD2d 233 (1st Dept. 1999).

While their response was due on November 3, the People filed their response on November 4. This is similar to the period between April 8, 2021, and May 25, 2021, previously found by this Court in its earlier decision to be chargeable to the People. Since there is no indication in that the record that on November 3, the People sought and obtained an additional extension of time to November 4, nor do they now “provide any explanation for the delayed response, they are chargeable with the time between the court-imposed deadline to respond to the motion and the date on which the[y] actually filed a response” (People v. Molina, 207 AD3d 797 [2d Dept 2022]; see also, People v. Gonzalez, 266 AD2d [2d Dept 1999], appeal denied 94 NY2d 920 [2000]. Therefore, while this entire period would normally be excluded from speedy trial calculations (see Worley, supra; see also, Reed, supra), the excludable time does not encompass the period between November 3, when their response was due, and November 4, the date it was filed. Therefore, an additional 1 day is chargeable to the People for this adjournment.

November 29, 2022 — December 6, 2022

On October 25, 2022, the Court advised the parties via email that the case would be on December 6, 2022, for decision on the motion and jury selection. Accordingly, when the parties appeared in court on November 29, the case was set down for jury selection on December 6. Accordingly, no time is chargeable to the People for this adjournment.

December 6, 2022 — December 9, 2022

On December 6, the People answered “not ready” because the lead detective had the flu, would be out sick for the rest of the week, and required a few days for COVID test results. Based on this, the Court granted a good cause adjournment to December 9, the date requested by the People.

It is well-settled law that the unavailability of a principal prosecution witness for medical reasons, is a sufficient exceptional circumstance to warrant the exclusion of the period of delay. See People v. Goodman, 41 NY2d 888, 889 (1977); see also, People v. Zirpola, 57 NY2d 706, 708 (1982). Furthermore, “[t]he unrefuted representation of the People constitutes sufficient proof of the medical unavailability of a prosecution witness.” People v. Alcequier, 15 AD3d 162, 163 (1st Dept. 2005) (citations omitted). Further, in Alcequier, the Court held that “[t]he People were not required to show that the witness was completely immobilized or totally incapacitated.” See Alcequier, supra, 15 AD3d at 163. Accordingly, “[n]o additional burden need be borne by the People under such circumstances other than a showing of ‘due diligence to make the witness available.’ ” People v. Marshall, 91 AD2d 900, 901 (1st Dept. 1983) (quoting Zirpola, 57 NY2d at 708). Consequently, no time is chargeable to the People for this adjournment.

Accordingly, defendant's motion for the Court to reconsider its November 17, 2022, decision is granted to the extent that the Court has reconsidered the facts, the law and current and previous motion papers and exhibits filed by the defendant and the People.

The Court finds the total time chargeable to the People to this point to be 174 days, which is within the six-month statutory period. Therefore, there is no basis to dismiss the case on speedy trial grounds.

Based on the foregoing, the defendant's motion to dismiss is denied.

This constitutes the decision and order of the Court.

The Clerk of the Court is directed to distribute copies of this decision and order to the attorney for the defendant and to the District Attorney.

Cassandra M. Mullen, J.