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The PEOPLE of the State of New York, v. Joel FREEMAN, Defendant.
Appearances of Counsel 1 :
By notice of Motion to Dismiss, filed on January 31, 2020, Defendant moves to dismiss the complaint herein pursuant to Criminal Procedure Law (hereinafter “CPL”) §§ 30.30(1)(b) and 210.20(1)(g). Having reviewed the Defendant's moving papers, the People's Affirmation in Opposition, and the relevant documents in the official court file, this Court grants the Defendant's Motion to Dismiss the accusatory instrument herein.
The accusatory instrument, sworn to by PO TAREQ RABADI of PATU, shieldNo. 28904, states that on or about July 14, 2019 at approximately 12:21 AM at Northwest corner of Bronxdale Avenue and Morris Park Avenue, County of the Bronx, State of New York:
Deponent is informed by PO Gurmeet Singh of 49 PCT, shield# 027660, that at the above time and place, he was responding to a radio run involving a recent motor vehicle accident, at the above-mentioned location, a public roadway, and observed defendant standing beside a gray 2003 Acura MDX, New York State license plate# CAS7207, which was overturned, and a 2010 Jeep, New York State license plate# GZJ3503, with drivers side rear-end damages.
Deponent is further informed by informant, that when defendant was asked what happened, defendant stated in sum and substance: I WAS DRIVING AND ANOTHER CAR CUT ME OFF AND CLIPPED MY VEHICLE AND I LOST CONTROL AND FLIPPED OVER.
Deponent is further by informant, that informant observed defendant to have a strong odor of an alcoholic beverage emanating from his breath, bloodshot watery eyes, and to be unsteady on his feet. Deponent is further informed by informant, that defendant stated in sum and substance: I WAS COMING FROM MY BROTHER'S PARTY AND I HAD A FEW BEERS.
Deponent states, that he present when defendant was administered a chemical test of the defendant's breath and that the defendant's blood alcohol content as displayed on the breath analysis machine was .13 of one percentum by weight.
Defendant was charged by criminal complaint and arraigned on July 14, 2019, with, Operating a Motor Vehicle While Under the Influence of Alcohol or Drug in violation of Vehicle and Traffic Law (hereinafter “VTL”) §§§ 1192(2); 1192(3) and 1192(1).
The Defendant moves to dismiss the accusatory charges herein pursuant to CPL §§ 30.30(l)(b) and 210.20(l)(g)2 because the People have exceeded the statutory maximum period of 90 days to bring the matter to trial. The People, by Affirmation in Opposition, dated February 6, 2020, oppose Defendant's motion.
CPL § 30.30(1)(b). Speedy trial. Time Limitations.
(1) Except as otherwise provided in subdivision three, a motion made under paragraph (e) of subdivision one of § 170.30 or paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within:
(b) ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony.
CPL § 170.30(1)(e). motion to dismiss information, simplified information, prosecutor's information or misdemeanor complaint.
(1) After arraignment upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, the local criminal court may, upon motion of the defendant, dismiss such instrument or any count thereof upon the ground that:
(e) The defendant has been denied the right to a speedy trial.
CPL § 245.20(2). Automatic Discovery.
(2) Duties of the prosecution. The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution. The prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge. This subdivision shall not require the prosecutor to ascertain the existence of witnesses not known to the police or another law enforcement agency, or the written or recorded statements thereof, under paragraph (c) or (e) of subdivision one of this section.
CPL §§ 245.50(1) and (3). Certificates of compliance; readiness for trial.
(1) By the prosecution. When the prosecution has provided the discovery required by subdivision one of section 245.20 of this article, except for any items or information that are the subject of an order pursuant to section 245.70 of this article, it shall serve upon the defendant and file with the court a certificate of compliance. The certificate of compliance (hereinafter “COC”) shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery. It shall also identify the items provided. If additional discovery is subsequently provided prior to trial pursuant to section 245.60 of this article, a supplemental certificate shall be served upon the defendant and filed with the court identifying the additional material and information provided. No adverse consequence to the prosecution or the prosecutor shall result from the filing of a certificate of compliance in good faith; but the court may grant a remedy or sanction for a discovery violation as provided in section 245.80 of this article.
(3) Trial readiness. Notwithstanding the provisions of any other law, absent an individualized finding of exceptional circumstances by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of section 30.30 of this chapter until it has filed a proper certificate pursuant to subdivision one of this section.
VTL §§§ 1192(1), (2) and (3). Operating a motor vehicle while under the influence of alcohol or drugs.
(1) Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.
(2) Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.
(3) Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
CALCULATION OF TIME
July 14, 2019 - July 17, 2019 (3 days chargeable)
On July 14, 2019, Defendant was arraigned in Bronx Criminal Court in Part AR3. He was represented by Alexandra Valdez, Esq. The People were not ready. The Defendant was released on his own recognizance and the matter was adjourned to AP4 on July 17, 2019 for conversion and hardship hearing.
July 17, 2019 - August 19, 2019 (33 days chargeable)
On July 17, 2019, the matter was calendared in Part AP4. The Defendant withdrew his application for a hardship hearing. The People were not ready. The matter was adjourned to Part AP4 on August 19, 2019 for conversion.
August 19, 2019 - October 5, 2019 (44 days chargeable)
On August 19, 2019, the matter was calendared in AP4. The People were not ready. The matter was adjourned to Part AP4 on October 5, 2019 for conversion.
On October 2, 2019, the People filed a supporting deposition and statement of readiness.
October 5, 2019 - November 13, 2019 (0 days chargeable)
On October 5, 2019, the matter was heard in AP4. The People were deemed converted and the Defendant was arraigned. The Defendant requested motion schedule. The matter was adjourned to Part AP4 on November 13, 2019 for response and decision.
On October 31, 2019, the Defendant filed an Omnibus Motion.
November 13, 2019 - December 11, 2019 (0 days chargeable)
On November 13, 2019, the matter was calendared in AP4. The People filed an Affidavit in Opposition to Defendant's Omnibus Motion. The Court denied Ayala/Atkins hearing, ordered a Mapp/Johnson/Ingle/Huntley/Dunaway hearing, and referred Sandoval to the trial court. The matter was adjourned to Part AP4 on December 11, 2019 for hearing and trial.
December 11, 2019 - January 9, 2020 (9 days chargeable)
On December 11, 2019, the matter was calendared in AP4. The People were ready. The Defendant was not ready. The matter was adjourned to Part AP4 on January 9, 2020.
January 9, 2020 - January 24, 2020 (5 days chargeable)
On January 9, 2020, the matter was calendared in AP4. The People were not ready and requested January 10, 2020, to file a COC Automatic Disclosure and statement of readiness. The matter was adjourned to Part AP4 on January 24, 2020.
On January 14, 2020, the People filed an Automatic Disclosure, COC and statement of readiness.
January 24, 2020 - February 20, 2020 (0 days chargeable)
On January 24, 2020, the matter was calendared in AP4. The People filed a supplemental COC and statement of readiness. The Defendant challenges the COC and the People's readiness due to the missing memo books of Police Officer Genesis Vasquez and Police Officer Chanta James. The People detail several attempts to ascertain the memo books but never receive or provide the Court with a definite answer as to their existence. The Court deemed the People's COC invalid. Following the Courts ruling the Defendant requested a motion schedule. The Defendant's Motion to Dismiss was due January 30, 2020. The People's response was due February 6, 2020. The matter was adjourned to Part AP4 on February 20, 2020 for this Court's decision.
The Defendant filed the instant Motion to Dismiss for speedy trial on January 31, 2020. The People filed their Affirmation in Opposition on February 6, 2020.
The issue at hand is whether the People should be charged the entire period from January 1, 2020 through January 14, 2020, or only January 1, 2020 through January 9, 2020. The Defendant contends that due to the changes in the statute, effective January 1, 2020, the People's statement of readiness from December 11, 2019 became invalid until they provided all newly discoverable material and filed a COC. The Defendant asserts that the People exceeded their speedy trial time prior to filing a proper COC and the case should be dismissed. The People argue they have not exceeded their speedy trial time. The People assert they remained ready the entire time between December 11, 2019 and January 9, 2020 because they stated ready on December 11, 2019 and the case was adjourned at the request of defense. The People concede they should be charged from January 9, 2020 through January 14, 2020. The People also argue the Court should find an exceptional circumstance based on their efforts to obtain discovery, charge them with eighty-five days and rather than dismiss, a sanction be imposed at trial.
The top count of the accusatory instrument is an unclassified misdemeanor requiring that the People be ready for trial within ninety days of commencement of the criminal action. CPL § 30.30(1)(b). Successful motions under CPL § 30.30 must demonstrate the existence of an unexcused delay in excess of the statutory maximum. see People v. Santos, 68 NY2d 859 (1986). Prior to January 1, 2020, the People were considered ready for trial when there was no legal impediment to trying their case and the People communicated their actual readiness in open court or served written notice of readiness to the court and defense counsel. see People v. Brown, 28 NY3d 392 (2016); see also People v. Kendzia, 64 NY2d 331 (1995). Although there is a presumption that a statement of readiness is truthful and accurate (People v. Sibblies, 22 NY3d 1174 (2014), on January 1, 2020 the law changed. The mandate pursuant to Article 245 of the CPL requires the People to file a COC stating they have met their discovery requirements within fifteen days of the inception of a criminal matter to be deemed ready for trial and invoke the presumption.3 CPL §§ 245.10(1)(a); 245.50(3). The People's “failure to declare readiness within the statutory time limit will result in dismissal of the prosecution unless the People can demonstrate that certain time periods should be excluded.” People v. Price, 14 NY3d 61, 63 (2010).
The new mandate also provides that “absent an individualized finding of exceptional circumstances by the court” the speedy trial time shall not be tolled until a proper certificate has been filed. CPL § 245.50(3). Exceptional circumstances have been found where a necessary witness was not available due to a medical reason or some circumstance outside the control of the prosecutor. see People v. Goodman, 41 NY2d 888 (1977) (unavailability of complainant for medical reasons); see also People v. McLeod, 281 AD2d 325 (1st Dep't 2001) (exceptional circumstances found where police officer was disabled due to arm cast). However, exceptional circumstances have not been found due to inadequate staffing, overwork or disorganization in the prosecutor's office. People v. Sturgis, 38 NY2d 625, 628-29; People v. Warren, 85 AD2d 747 (2d Dept 1981); see also People v. DiMeglio, 294 AD2d 239 (1st Dept 2002).
As the People were ready on December 11, 2019, and the adjournment was at the request of defense counsel this Court finds the period between December 11, 2019 through January 1, 2020 excludable pursuant to CPL § 30.30(4)(b); see People v. Worley, 66 NY2d 523 (1985); see also People v. Cambridge, 230 AD2d 649 (1st Dept 1996). The People exceeded their statutory time limitation by four days when they filed their Certificate of Compliance, Automatic Disclosure and statement of readiness on January 14, 2020.4 Here, exceptional circumstances do not exist as the People; i) did not communicate any such circumstances on the record on the January 9, 2020, ii) inferred full knowledge of the impending expiration when stating their intention to file a COC on January 10, 2020 and iii) are imputed to have had the existent discoverable material in their possession.5 CPL § 245.20(2). Thus, the Court cannot make a finding that an individualized exceptional circumstance exist in this case to modify the speedy trial clock. This Court notes the gravity of the allegations in this case but is constrained from issuing a different decision and must rule consistent with the legislative mandate. Therefore, the People are charged ninety-four days as of January 14, 2020, which is over their statutory allotment and the case against Mr. Freeman must be dismissed.
In view of the foregoing, the Court finds a total of ninety-four (94) days chargeable to the People. Accordingly, Defendant's Motion to Dismiss under CPL §§ 30.30(1)(b) and 170.30(e) is granted.
This constitutes the decision and order of the Court.
1. ADA Divya Ramaswamy, Bronx County, New York, District Attorney's Office, for the People. Alexandra Valdez, Esq., Bronx Defenders, Bronx County, New York, for the Defendant.
2. The instant matter does not contemplate an indictment. As such, the Court's decision is not based upon the prescriptions of C.P.L. § 210.20(1)(g) but instead the standard as prescribed by C.P.L. § 170.30(1)(e).
3. Upon specific circumstances, including exceptionally voluminous materials or discoverable materials are not in the prosecutor's actual possession despite diligent and good faith efforts, a possible thirty-day extension is permissible to the file the required COC. CPL § 245.10(1)(a).
4. This Court will not conduct a review regarding the validity of the Certificate of Compliance as the People exceeded their statutory time prior to the filing date.
5. Upon further diligence the People did produce a portion of the outstanding material on January 27, 2020.
Jeanine R. Johnson, J.
Response sent, thank you
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Docket No: 2018BX019980
Decided: March 12, 2020
Court: Criminal Court, City of New York,
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