People v. Aviles

• Decision Date: 04 May 2021
• Docket Number: CR-020412-20KN
• Citation: 148 N.Y.S.3d 659,72 Misc.3d 423
• Court: New York Criminal Court
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Igor AVILES, Defendant.

72 Misc.3d 423

148 N.Y.S.3d 659

The PEOPLE of the State of New York, Plaintiff,

v.Igor AVILES, Defendant.

CR-020412-20KN

Criminal Court, City of New York, Kings County.

Decided on May 4, 2021

People: Kings County District Attorney's Office by ADA Zachary Trkla

Defendant: The Legal Aid Society by Brian Chelcun, Esq.

Adam Perlmutter, J.

The defendant, Igor Aviles, was charged at arraignment in a local accusatory instrument with Driving While Intoxicated ( VTL § 1192[3] ), Driving While Impaired ( VTL § 1192[1] ), Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree ( VTL § 511[2][a][4] ), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree ( VTL § 511[1] ), and Unlicensed Operation of a Motor Vehicle ( VTL § 509[1] ). The People dismissed felony charge on November 23, 2020, to proceed with only the misdemeanor counts. On December 30, 2020, the People filed a certificate of compliance stating ready for trial without adding or dismissing any of further charges.

The issue before the Court is the application of CPL 30.30(5-a), specifically, whether the Court can permit retroactive certification of a prosecutor's obligations under that section.¹ In the present case, Defendant argues that the People's statement of readiness is invalid because the People did not certify to the requirements of CPL § 30.30(5-a). Rather, the People only stated they were "ready for trial pursuant to CPL §§ 30.30(5) [and] 245(1)." See Prosecutor's Certificate of Compliance, dated December 30, 2020. As a result, Defendant argues the December 30, 2020 statement of readiness is invalid and the charges should be dismissed since more than 90 days have elapsed pursuant to CPL § 30.30(1)(b).

CPL § 30.30(5-a) ensures that all charges in a local criminal court accusatory instrument are fully converted with non-hearsay evidence supporting every element of every charge. Compliance with § 30.30(5-a) is required for the People announce readiness for trial and to stop the speedy trial clock. Stated differently, the provision prevents the earlier practice of partial conversion, where unconverted and converted ran simultaneously in the parallel universes, with charges for trial being a moving target for the defense. CPL § 30.30(5-a) remedies that situation by requiring all charges to be converted with non-hearsay for the People to state ready, or, alternatively, requiring all charges supported by hearsay allegations to be dismissed. Specifically, CPL § 30.30(5-a) states:

Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charges in the accusatory instrument meet the requirements of section 100.15 and 100.40 of this chapter and those counts not meeting the requirements of section 100.15 and 100.40 of this chapter have been dismissed.

Defendant, as well other courts of coequal jurisdiction, maintain that the CPL § 30.30(5-a) should be strictly construed; that a prosecutor commits a fatal error by not contemporaneously certifying compliance with 30.30(5-a) at the time of filing of a statement of readiness; and that the law's plain language mandates that automatic dismissal to effect the Legislature's intent where a statement of readiness does not include this language. See, e.g., People v. Lavrick, 2021 NY Misc. LEXIS 1935 (Crim. Ct. NY Co., April 22, 2021) (dismissing charges of Endangering the Welfare of a Child and Sexual Abuse in the Third Degree); People v. Justin Rivera, CR-004779-20NY (Crim. Ct. NY Co., April 6, 2021) (dismissing charges of Forcible Touching, Sexual Abuse in the Third Degree, and Public Lewdness); People v. Lafong, CR-016022-20NY (Crim. Ct. NY Co., March 5, 2021) (dismissing charges of Assault in the Third Degree and Aggravated Harassment); People v. Ifty , CR-03291-19QN (Crim. Ct. Queens Co., Feb. 25, 2021) (same); People v. Ramirez-Correa, (NYC Crim. Ct., Queens Co., Feb. 25, 2021).

Prior to the enactment of the current statutory framework, a valid statement of readiness had to meet two requirements: (1) that the People communicate their readiness either "in open court or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court," and (2) that the People are in fact ready at the time they make their statement. People v. Kendzia , 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985) (precluding future statements of readiness); People v. Chavis , 91 N.Y.2d 500, 506, 673 N.Y.S.2d 29, 695 N.E.2d 1110 (1998). With the advent of criminal justice reform laws in New York State, the People must also comply with the requirements set forth in Criminal Procedure Law § 30.30(5) which states, inter alia , that "any statement of readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20." (emphasis added ). Henceforth, and unlike the previous system, this provision linked the concepts of discovery compliance and trial readiness for speedy trial purposes.

In contrast to CPL § 30.30(5), § 30.30(5-a), a separate provision, and not subsection of CPL § 30.30(5), contains no similar language that the statement of readiness "must be accompanied or preceded by" certification of compliance with the partial conversion proscriptions of § 30.30(5-a). Rather, to be a valid statement of readiness, the section only provides that the prosecuting attorney must certify the local criminal court accusatory instrument meets the requirements of section CPL § 100.15 and 100.40, and that those counts not meeting the requirements have been dismissed.

The Legislature in its wisdom could have easily included the same or similar language in 30.30(5-a), requiring that certification must "be accompanied or preceded by" or precede a statement of readiness. But the Legislature chose not to do so. That the distinction was a conscious decision by the Legislature is supported by the fact that both 30.30(5) and 30.30(5-a) passed together as part of the April 2019 executive budget. Had the Legislature wanted to mandate contemporaneous certification with the filing of a statement of readiness, the statute could have been written with that requirement. But the Legislature did not proceed in that fashion. The only requirement of this provision is that the certification "shall be made" for a statement of readiness to be "valid," not that the certification must be made prior to or accompanying the statement of readiness. See People v. Jackson , 87 N.Y.2d 782, 788, 642 N.Y.S.2d 602, 665 N.E.2d 172 (1996) ("Where a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded") (quotation marks and citations omitted); People v. Tychanski , 78 N.Y.2d 909, 911-12, 573 N.Y.S.2d 454, 577 N.E.2d 1046 (1991) ("the failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended") (quotation marks and citations omitted); United States v. Pristell , 941 F.3d 44 (2d Cir. 2019) ("[T]he presence of a phrase applicable to one factor makes clear that the phrase's omission elsewhere was deliberate.") (citation omitted); see also Barnhart v. Peabody , 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003) ("the canon expressio unius est exclusio alterius ... has force ... when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence"); Theroux v. Reilly, 1 N.Y.3d 232, 240, 771 N.Y.S.2d 43, 803 N.E.2d 364 (2003) (a court "may not create a limitation that the Legislature did not intend to enact;" if the Legislature...