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The PEOPLE of the State of New York, v. Marisol VERNON, Defendant.
Marisol Vernon was arraigned on May 2, 2022 on a felony complaint alleging one count each of P.L. § 140.30(2) (Burglary in the First Degree), P.L. § 140.25(1)(b) (Burglary in the Second Degree), P.L. § 140.25(2) (Burglary in the Second Degree), P.L. § 140.20 (Burglary in the Third Degree), P.L. § 110/120.05(2) (Attempted Assault in the Second Degree), P.L. § 120.00(1) (Assault in the Third Degree), P.L. § 120.14(1) (Menacing in the Second Degree), P.L. § 265.01(2) (Criminal Possession of a Weapon in the Fourth Degree), P.L. § 110/120.00(1) (Attempted Assault in the Third Degree), P.L. § 120.15 (Menacing in the Third Degree), and P.L. § 240.26(1) (Harassment in the Second Degree).
Off-calendar on August 29, 2022, the People filed a motion to dismiss the felony charges contained in the accusatory instrument. The case was next heard in AP1F on September 15, 2022, where the felony charges were dismissed from the accusatory instrument. Notably, the People did not attempt to advance the matter for dismissal of the felony counts, nor request a motion schedule. The case was then adjourned to Part DV1 on October 12, 2022 and proceeded through Criminal Court as a misdemeanor complaint. On November 6, 2022, the People filed a Certificate of Compliance (“COC”) and Statement of Readiness (“SOR”) for the remaining charges.
Defense counsel filed the instant motion to dismiss on January 3, 2023, requesting that the Court find the People's COC and SOR illusory and dismiss the accusatory instrument pursuant to CPL §§ 245.50(1) and 30.30. Vernon's motion first argues that underlying Giglio material was not disclosed before the People filed a COC, and second, that the People's COC was filed past the statutory deadline for a misdemeanor complaint that previously contained felony charges. The Court has reviewed Vernon's moving papers, the People's response, and all the relevant facts and case law. For the reasons stated below, Vernon's motion to controvert the prosecutor's certificate of compliance and to dismiss the case pursuant to CPL § 30.30 is GRANTED.
1). Giglio materials
Vernon argues that CPL § 245.20(1)(k) requires the People to produce all underlying records related to complaints against law enforcement officers that the People intend to call as testifying witnesses at trial as part of the initial discovery that is produced to the defense. The Court disagrees.
CPL § 245.20(1)(k) requires the People to disclose, during the “initial” phase of discovery, “all items and information that relate to the subject matter of the case and are in the possession, custody, or control of the prosecution or persons under the prosecution's direction or control, including but not limited to:
All evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tend to (i) negate the defendant's guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) impeach the credibility of a testifying prosecution witness; (v) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangible form and irrespective of whether the prosecutor credits the information. CPL § 245.20(1)(k).
Here, the Court finds that the People's initially disclosed Giglio letters, which only included substantiated claims of officer misconduct and no underlying materials, were sufficient for purposes of meeting its automatic discovery requirements. See People v. Douglas, Ind. No. 6660/2019, at 3 (Sup. Ct. Kings Cty. Dec. 1, 2020) (Hecht, J.) (rejecting the defense's claim that the People must produce underlying records and stating that “although the defense acknowledges its power of subpoena, it rejects its obligation to make use of that power, despite a specific statutory directive [see CPL § 245.20(2)]”); People v. Davis, 70 Misc 3d 467, 476 (Crim. Ct., Bronx Cty. 2020) (“[T]he plain language of the new discovery statute only requires the People to disclose the information that is favorable to the defendant, but not necessarily the underlying material as well. This is especially so when, with the repeal of [Civil Rights Law Section] 50-a, the information is equally accessible to the defense.”); see also People v. Gonzalez, 2020 NY Misc. LEXIS 4462, at *5-*6, 2020 NY Slip Op. 50924(U), at **2-**3 (Sup. Ct. Kings Cty. Aug. 19, 2020) (Hecht, J.); People v. Johnson, Ind. No. 1642/2019, at 3 (Sup. Ct. Kings Cty. Mar. 4, 2021) (Leo, J.); People v. Knight, 69 Misc 3d 546 (Sup. Ct. Kings Cty. 2020) (Hecht, J.).
2). Motion to dismiss felony counts
CPL § 30.30(7)(c) enumerates the applicable speedy trial period for the instant matter, a case that began with a felony complaint and was later reduced to a misdemeanor complaint in the same criminal action:
the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.
The parties do not dispute that the speedy trial time limit applicable to this matter, which was commenced by the filing of a felony complaint, is 184 days. The only dispute is whether the People have exceeded this time period by filing their COC and SOR on November 6, 2022, which falls 188 days after Vernon's arraignment.
Defense counsel argues that there are no periods of excludable time prior to the filing of the COC and SOR, and that the People must be charged for all 188 days by the time the initial COC was filed. The People refute this by claiming that their motion to dismiss counts, filed on August 29, 2022, stopped the clock as a pre-trial motion until September 16, 2022, when the felony counts were dismissed in court. This purported “motion practice” under the People's reading of § 30.30(4)(a) would bring the total number of excludable days to 17 days and result in only 171 days charged to the People. However, the Court disagrees with the People's reading of § 30.30(4)(a) in this matter and grants Vernon's motion to dismiss. The 17-day period after the filing of the motion to dismiss the felony counts must be charged to the People—bringing the total number of chargeable days to 188 days.
It is true that specific periods of delay precipitated by pre-trial motions are not chargeable to the People. CPL § 30.30(4)(a) excludes from speedy trial calculations “a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to ․ pre-trial motions ․ and the period during which such matters are under consideration by the court.” The People's motion papers cite to numerous examples where courts have carved out excludable time for the People's pre-trial motion practice, such as motions for protective order,1 motions to modify timelines for discovery disclosures,2 motions to reargue,3 motions to amend a count on an indictment,4 and motions to consolidate an indictment.5 However, these contested motions are fundamentally different from a purely summary motion to dismiss counts on a complaint, and the Court does not find these citations persuasive.
The purported motion to dismiss counts in the present case does not fall within the exceptions enumerated under CPL § 30.30(4)(a). See People v. Collins, 82 NY2d 177, 181 (1993) (holding that the carveout for pre-trial motions under CPL § 30.30(4)(a) “generally refers to delays attributable to responding to and deciding motions actually made”); People v. Thomas, 59 Misc 3d 64 (1st Dep., App. Term 2018) (determining that a motion to dismiss felony counts is not a “pretrial motion” under CPL 30.30(4)(a) and charging the People for time accordingly); see also People v. Saavedra, 726 Misc 3d 626 (Crim. Ct. Bronx Cty. 2022).
The People's purported motion did not contain any return date, nor did the People's motion to dismiss counts necessitate any response from the defense—unlike a motion for protective order, to reargue, to amend an indictment, or to consolidate an indictment. See Collins, 82. NY2d at 181; Thomas, 59 Misc 3d at 66. In fact, upon review, the motion to dismiss the felony counts in this matter is only ministerial for the matter to be adjudicated in Criminal Court. The Court did not even set a motion schedule, as the matter did not require any deliberation whatsoever. Id.
The People had also several available remedies to declare their readiness without needing to cause any undue delay for Vernon. For example, under CPL § 180.40 or § 180.50, the People may submit an ex parte application to dismiss or reduce counts. See Thomas, 59 Misc 3d at 66. Further, the People could have mitigated any undue delay by requesting that the matter be advanced for the dismissal of counts, and no record is before this Court about whether the People made any attempts to do so. Id.
3). Applicable speedy trial time
Therefore, the Court makes the following findings:
Vernon was arraigned on May 2, 2022, and the matter was adjourned to June 10, 2022 for grand jury action. 39 days charged.
No grand jury action took place on June 10, 2022, so the matter was adjourned again to August 4, 2022 for grand jury action in AP1F. 55 days charged.
On August 29, 2022, the People filed a motion to dismiss the felony counts contained in the accusatory instrument, and the matter was next heard in AP1F on September 15, 2022, where the felony charges were dismissed. The matter was adjourned to October 12, 2022 for COC. 42 days charged.
The People stated not ready on October 12, and the case was adjourned to November 21, 2022 for final. The People filed their COC/SOR off-calendar on November 6, 2022. 52 days charged.
Total: 188 days charged.
The People have exceeded the 184 days permitted under CPL § 30.30.
Accordingly, it is hereby:
ORDERED, that Vernon's motion to dismiss is GRANTED. The case is ordered dismissed and sealed, with sealing stayed for 30 days.
1. People v. Erby, 68 Misc 3d 625, 637-638 (Sup. Ct. Bronx Cty. 2020).
2. People v. Muzyko, Docket No. CR-015535-20KN, at 5, 6 (Crim. Ct. Kings Cty. March 5, 2021) (Perlmutter, J.)
3. People v. Barham, 216 AD2d 477 (2d Dep. App. Div. 1995).
4. People v. Wallace, 94 AD2d 708 (2d Dep. Ap. Div. 1983).
5. People v. Kelly, 33 AD3d 461 (1st Dep. App. Div. 2006).
Adam D. Perlmutter, J.
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Docket No: Docket No.: CR-012029-22KN
Decided: March 01, 2023
Court: Criminal Court, City of New York,
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