People v. Acosta

• Decision Date: 18 August 2022
• Docket Number: Docket No. CR-018754-21BX
• Citation: 76 Misc.3d 868,174 N.Y.S.3d 253
• Parties: The PEOPLE of the State of New York, v. Dariel ACOSTA, Defendant.
• Court: New York Criminal Court

76 Misc.3d 868
174 N.Y.S.3d 253

The PEOPLE of the State of New York,
v.
Dariel ACOSTA, Defendant.

Docket No. CR-018754-21BX

Criminal Court, City of New York, Bronx County.

Decided on August 18, 2022

174 N.Y.S.3d 254

For the People: ADA Michael Dal Lago, Office of Darcel D. Clark, Bronx County District Attorney

For Defendant: Sungso Lee, Esq., The Legal Aid Society of Bronx County

Michael J. Hartofilis, J.

174 N.Y.S.3d 255

76 Misc.3d 869

By motion filed May 9, 2022, Defendant moves for dismissal of the instant matter pursuant to CPL § 30.30 for the People's failure to timely comply with their discovery and trial readiness obligations under CPL § 30.30 and article 245. The People oppose the motion and claim that with certain time periods excludable under CPL § 30.30 [4], they were ready for trial within the ninety day-period required by § 30.30 [1][b]. The Court finds that the motion can be decided based on the papers, the court file, and minutes of prior court proceedings in this matter. ( People v. Lomax , 50 N.Y.2d 351, 428 N.Y.S.2d 937, 406 N.E.2d 793 [1980] ; People v. Varela , 164 A.D.2d 924, 559 N.Y.S.2d 756 [2d Dep't 1990] ).

Background

Defendant was arrested on November 28, 2021. Pursuant to a desk appearance ticket, he appeared for arraignment on the misdemeanor complaint on December 18, 2021. The case was adjourned to part AP-3 on February 16, 2022, for conversion to an information and arraignment thereon pursuant to CPL § 170.10 [1][a]. On February 16, 2022, the People filed a supporting deposition and the court deemed the complaint an information. Defendant failed to appear, and defense counsel indicated that she had been unable to contact him that morning. Counsel expressly requested the adjournment of proceedings due to her client's non-appearance:

"... for some reason, my calls are not going through today I would ask the Court to consider excusing my client for today."

(Transcript, February 16, 2022, p. 2 ll 10-19).

Although Defendant needed to be arraigned on the newly converted accusatory instrument, the court excused Defendant's appearance upon this request. Upon the prosecutor's query as to the status of the arraignment, the following colloquy occurred:

76 Misc.3d 870

MR. DAL LAGO: Just to clarify, Judge, I understand you deemed this complaint an information, but obviously the defendant was not arraigned today, correct?

THE COURT: yes, he was arraigned. I entered a plea of not guilty and I did not require the defendant's appearance, which is at counsel's request. Counsel, I assume you [consent] to that?

MS. LEE: Yes, Judge I would ask the Court to adjourn it for a COC

(Id. , p. 3, ll 10-15). After this in absentia arraignment, the presiding judge adjourned the case for the COC filing to March 24, 2022, on which date Defendant again failed to appear, and the court again excused his appearance at counsel's request.

On March 30, 2022, the People filed their COC and off-calendar statement of readiness ("SOR").

Speedy Trial Motion

The People are required to declare readiness for trial within 90 days of the commencement of a criminal action charging an "A" misdemeanor. ( CPL § 30.30 [1][b] ).

Defendant has satisfied his initial speedy trial burden by alleging that the People were not ready for trial as required under CPL § 30.30[1][b]. Defendant argues that the February 16 adjournment to March 24: (i) was not a "consent adjournment" under § 30.30 [4][b] because the court adjourned the case for the People to file a COC; (ii) was not a situation where a bench warrant is stayed or the defendant is avoiding prosecution, so § 30.30 [4][c] does not apply; and (iii) did not prevent the people from

174 N.Y.S.3d 256

filing their COC and declaring trial readiness.

In opposition, the People argue that the Defendant's failure to appear in court on February 16, 2022 rendered the 36-day period thereafter excludable. ( People v. Luperon , 85 N.Y.2d 71, 623 N.Y.S.2d 735, 647 N.E.2d 1243 [1995] ; People v. Drummond , 215 A.D.2d 579, 627 N.Y.S.2d 55 [2d Dep't 1995] ). The prosecutor insists that defense counsel's request that the court excuse Defendant's appearance, and her consent to an in absentia arraignment constitute an excludable adjournment under CPL § 30.30 [4][b], and that the Court's action is analogous to the staying of a bench warrant, excludable under § 30.30 [4][c].

In this case, several competing principles operate. Judges have considerable discretion to control their own calendars, of

76 Misc.3d 871

which granting adjournments and excusing appearances is a corollary. ( People v. Coppez , 93 N.Y.2d 249, 689 N.Y.S.2d 692, 711 N.E.2d 970 [1999] ). However, such discretion is not unfettered. CPL § 170.10 [1] specifically requires defendants to appear personally for arraignment upon the filing of a local criminal court information (with two exceptions not relevant here). Arraignment on a misdemeanor complaint after appearance on a DAT confers only limited jurisdiction on the court. ( People v. Stirrup , 91 N.Y.2d 434, 671 N.Y.S.2d 433, 694 N.E.2d 434 [1998] ; People v. Parris, 79 N.Y.2d 69, 580 N.Y.S.2d 167, 588 N.E.2d 65 [1992] ; People v. Masellis , 140 Misc. 2d 1024, 1027, 532 N.Y.S.2d 465 [Crim. Ct. N.Y. County 1988] ). To proceed with a prosecution, a misdemeanor complaint must be replaced by a facially sufficient information, upon which the defendant then must be arraigned. ( CPL §§ 170.10[1] ; 170.65[1]; People v Slade , 37 N.Y.3d 127, 136, 148 N.Y.S.3d 413, 170 N.E.3d 1189 [2021] ). There is no statutory provision which permits a court to conduct an arraignment on a converted misdemeanor information in the absence of a defendant's personal appearance.

When on February 16, 2022, Defendant failed to appear for arraignment on the converted accusatory instrument, the presiding judge could have issued a bench warrant for Defendant's failure to appear. Alternatively, the court could have issued a warrant, stayed its execution, and adjourned the case for arraignment purposes. ( People v. Mendoza, 72 Misc. 3d 1223(A), 2021 WL 4097397 [Crim. Ct. N.Y. County 2021] ; People v. Penil , 18 Misc. 3d 355, 356—57, 852 N.Y.S.2d 619 [Sup. Ct. Bronx County 2007] ; People v. Dhanraj , 40 Misc. 3d 250, 252, 964...