People v. Ashkinadze

• Decision Date: 15 September 1995
• Citation: 167 Misc.2d 80,636 N.Y.S.2d 554
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Pinia ASHKINADZE, Defendant.
• Court: New York City Court

Page 554

636 N.Y.S.2d 554

167 Misc.2d 80

The PEOPLE of the State of New York, Plaintiff, v. Pinia ASHKINADZE, Defendant.

Criminal Court of the City of New York,

Kings County.

Sept. 15, 1995.

Charles J. Hynes, District Attorney of Kings County (Armena Gayle, of counsel), for plaintiff.

Lloyd Epstein, New York City, for defendant.

LORIN M. DUCKMAN, Judge.

The defendant moves this court pursuant to CPL §§ 30.30, 30.20, U.S. Const. 6th Amendment and section 12 of the New York Civil Rights Law for dismissal of the charges against him on speedy trial grounds.

On November 21, 1994, the defendant was arrested and charged with driving while intoxicated (Vehicle and Traffic Law § 1192[3], a class A misdemeanor. The defendant was transported to the 78th Precinct where he refused to submit to a chemical test for intoxication. The defendant alleges that he was fingerprinted on this day. A Desk Appearance Ticket ("DAT") was issued ordering him to appear on December 29, 1994.

On December 29, 1994, the defendant appeared in Criminal Court. The misdemeanor complaint was served on the defendant and filed with the court.

Because there was no "NYSID," the defendant was ordered to be fingerprinted. The court file indicates that the defendant was fingerprinted on December 29, 1994. The case was adjourned to January 19, 1995 for "prints."

Upon defendant's appearance on the "DAT" and the filing of the accusatory instrument, the court acquired jurisdiction over him. See, CPL § 1.20(9). This commenced the running of the speedy trial clock. See, People v. Parris, 79 N.Y.2d 69, 580 N.Y.S.2d 167, 588 N.E.2d 65 (1992); People v. Vescur, 134 Misc.2d 574, 511 N.Y.S.2d 997 (Crim Ct, N.Y. City 1987).

On January 19, 1995, the court papers indicated that the case was adjourned to February 9, 1995, again for "prints."

On February 9, 1995, for some reason the defendant was ordered to be reprinted. The matter was adjourned to March 27, 1995, again for "prints." The court file indicates that the adjournment was a "court adjournment." No mention was made in the court file of why the defendant's prints had not been obtained or what efforts had been made to obtain them.

On March 27, 1995, the "NYSID" sheet was available. For the first time, the people announced "ready." This tolled the pre-readiness speedy trial clock. See, People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985).

The defendant contends that the entire period from December 29, 1994 to March 27, 1995, 88 days, is chargeable to the people. He argues that the police and the Division of Criminal Justice Services are arms of the people and are statutorily required to provide copies of his "NYSID" sheet to the District Attorney's office and the court. See, CPL §§ 160.10, 160.20 and 160.30. In the absence of the "NYSID" sheet, he contends the people cannot announce "ready."

The people contend that the entire period before announcing "ready" on March 27, 1995 is excludable because the court labeled the adjournments "court adjournments." Court adjournments are not chargeable to the people. In addition, the people also argue that CPL § 150.70 empowers the court to order the defendant to be fingerprinted. The people's argument appears to be that since the District Attorney's office has no control over the fingerprinting of the accused, it has no control over obtaining the "NYSID" sheet which was needed to arraign him. Consequently, the people assert that any delay due to the absence of the NYSID sheet cannot be attributed to the people.

If an arrest without a warrant is for an offense other than a felony, the arrested person need not be brought immediately before a local criminal court. Rather, the police officer, where he is specifically authorized by law, may issue and serve an appearance ticket upon the arrested person and release him from custody. See, CPL § 140.27(4)(a).

An appearance ticket is a written notice to appear in a local criminal court on a designated future time in connection with the alleged commission of a designated offense. See, CPL § 150.10. It does not confer upon the court jurisdiction over the defendant or the subject matter. To do so, a police officer who has issued and served an appearance ticket must, at or before the return date, file with the local criminal court a misdemeanor complaint, a simplified information or an information charging the person named in the appearance ticket with the offense specified therein. See, CPL § 150.50(1).

When a defendant, whose attendance has been secured by an appearance ticket, appears on the return date, he must be arraigned. An arraignment takes no ritualistic form. It is merely the occasion when the accusatory instrument is filed and the court obtains jurisdiction over the person named in it. The court must also consider ordering bail or recognizance, an act which sets the terms of defendant's release and the date of the next appearance. See, CPL § 530.20(1). The arraignment of a defendant is an elemental prerequisite to trial readiness. See, People v. England, 84 N.Y.2d 1, 613 N.Y.S.2d 854, 636 N.E.2d 1387 (1994).

There is no requirement that a person be fingerprinted prior to appearing in court on a misdemeanor intoxicated driving charge for which a "DAT" has been issued. Further, there is no requirement that defendant's criminal record be before the court before an arraignment on a misdemeanor. See, CPL § 530.20(1).

If an offense charged in the accusatory instrument is one for which fingerprinting is mandatory, the court must then direct that the defendant be fingerprinted by the appropriate police officer or agency. See, CPL § 150.70.

After the fingerprints are obtained by the police, they are transmitted to the Division of Criminal Justice Services. See, CPL §§ 160.10; 160.20. The Division of Criminal Justice Services generates a "NYSID" sheet and promptly transmits it to the police. See, CPL § 160.30. The police, in turn, promptly furnish a copy to the District Attorney's office and two copies to the local criminal court. See, CPL § 160.40.

In the case at bar, the defendant appeared on the return date. The court had a copy of the misdemeanor complaint. The defendant was ordered to be fingerprinted and directed to return on the scheduled adjourn date. Notwithstanding the fact that the court papers state on December 29, 1994 that the defendant was not arraigned, the defendant was in fact arraigned. See, CPL § 1.20(9).

When the court adjourned the matter three times, ostensibly for fingerprints, the court action sheet noted on one occasion that the adjournment was a "court adjournment." Any notation on the court papers as to the includability or excludability of a specific adjournment is not binding on this court. Such a determination is made only when the defendant moves to dismiss on speedy trial grounds and not at the time the adjournment is granted. See, People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 (1980).

In pre-readiness cases, all the elapsed time preceding a statement of readiness is chargeable to the people, except to the extent that particular delay periods may be excused. See, CPL § 30.30(4).

In considering the requirements of CPL § 30.30, the Court of Appeals has construed it in light of its language and its legislative history as being intended only to address delays occasioned by prosecutorial inaction. See, People v. McKenna, 76 N.Y.2d 59, 63, 556 N.Y.S.2d 514, 555 N.E.2d 911 (1990). CPL § 30.30 addresses prosecutorial readiness, not court readiness. See, People v. Tavarez, 147 A.D.2d 355, 356, 537 N.Y.S.2d 517, lv. denied 73 N.Y.2d 1022, 541 N.Y.S.2d 777, 539 N.E.2d 605 (1989).

Inaction or delay on the part of a state agency is attributable to the people and can prevent the people from being "ready" for trial. For example, if the people fail to produce an incarcerated defendant for trial, they cannot be ready for trial and are charged with the delay. See, e.g., People v. England, supra; People v. Cole, 73 N.Y.2d 957, 958, 540 N.Y.S.2d 984, 538 N.E.2d 336 (1989). Likewise, in the absence of due diligence, a delay in producing a defendant confined by court order to a psychiatric facility is chargeable to the people. See, e.g., People v. Bryant, 158 Misc.2d 86, 600 N.Y.S.2d 929 (Crim.Ct., N.Y. City 1993). Even a delay caused by a defendant who bench warrants is chargeable to the people if the police fail to exercise due diligence in searching for him. See, e.g., People v. Bolden, 81 N.Y.2d 146, 597 N.Y.S.2d 270, 613 N.E.2d 145 (1993).

Based on the foregoing, it is clear that the police and the Division of Criminal Justice Services are arms of the people and the delays of one for speedy trial purposes are attributable to the other.

The people conceded at oral argument that no efforts were made to contact any agencies to determine the existence of the prints or the reason for the failure to obtain the prints.

The absence of prints in no way impeded the people from stating "ready" on December 29, 1994. The people's assertion that they did not state "ready" based upon the mistaken assumption that the court adjournment was excludable does...