People v. Berkowitz, CR-028579-19KN
| Decision Date | 12 March 2020 |
| Docket Number | CR-028579-19KN |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Andrew BERKOWITZ, Defendant. |
| Court | New York Criminal Court |
The Legal Aid Society, Nicholas Wiltsie for the defendant
Kings County District Attorney's Office, Michael Pesin-Virovets for the People
After an accident between the defendant's motorcycle and another vehicle on July 29, 2019 at 2:05 a.m. on Hamilton and Third Avenues in Kings County, defendant was charged with two counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of VTL § 1192(1) and (3) ; Aggravated Unlicensed Operation of a Motor Vehicle in violation of VTL 511(1)(a) ; Unlicensed Operation of a Motor Vehicle in violation of VTL § 509 ; and Possession of Knives or Instruments with a Blade of Four Inches or More in violation of AC § 10-133.
By motion filed on February 4, 2020, defendant moves to dismiss the accusatory instrument pursuant to CPL §§ 30.30 and 30.20. Defendant also moves to controvert the search warrant later obtained by the People to test the blood drawn from the defendant during his hospitalization from the accident and to suppress the physical evidence obtained therefrom. On February 21, 2020, the People filed a response, and on February 27, 2020, the defendant filed a reply.
For the following reasons, defendant's motion to dismiss the remaining charges pursuant to CPL § 30.30 and 30.20 is DENIED. Defendant's motion to controvert the search warrant is DENIED.
Where, as here, the top count charged on the information is an A misdemeanor, the People are required to be ready for trial within ninety days, less any excludable time ( CPL § 30.30[1][b] ). The ninety-day period commences with the filing of the accusatory instrument (see CPL § 1.20 [17] ); People v. Stirrup , 91 NY2d 434, 438 [1998] ). The day on which the accusatory instrument is filed is excluded (see People v. Stiles , 70 NY2d 765 [1987] ).
Before answering ready for trial, the People must have "done all that is required of them to bring the case to a point where it may be tried" ( People v. England , 84 NY2d 1, 4 [1994] ). Readiness for trial encompasses two elements. First, the People must "answer ready" by either communicating their readiness in open court or by filing a certificate of actual readiness with the court and serving a copy on the defendant's attorney (see People v. Brown , 28 NY3d 392, 403 [2016] ; People v. Kendzia , 64 NY2d 331, 337 [1985] ). Second, "the People must in fact be ready to proceed at the time they declare readiness" (id. ; People v. Chavis , 91 NY2d 500, 505 [1998] ).
Generally, once a statement of readiness is filed, the People are only charged for adjournments when the delay is solely and exclusively the fault of the prosecution, and the time cannot otherwise be excluded under Section 30.30 (4) (see Brown , at 404; People v. Cortes , 80 NY2d 201, 210 [1992] ). Otherwise, post-readiness the People are charged with the amount of time they request on the record (see People v. Bruno , 300 AD2d 93, 95 [1st Dept 2002] ).
The People bear the burden of establishing that the statement of readiness is valid and that the People are actually ready to proceed with trial at the time they announce ready (Kendzia at 339). While the People are only charged with the amount of time they request on the record after a statement of readiness, unless the time is otherwise excludable under CPL § 30.30(4) (see Brown , at 404), an "illusory" statement of readiness is insufficient to stop the speedy trial clock ( England , 84 NY2d at 4 ). If the court finds a prior statement of readiness was illusory, the court "should calculate any delay chargeable to the People as required by statute as if the illusory statement of readiness was never made" (Brown at 406; see also CPL § 30.30 [5] ).
On January 1, 2020, new discovery and speedy trial laws went into effect, replacing CPL articles 30 and 240. Article 245 delineates the People's discovery obligation and further sets out a statutory time frame for the completion of certain discovery ( CPL §§ 245.20 ; 245.10).1 Pursuant to the timing provisions set forth in CPL § 245.10, the People must comply with their discovery obligations without any demand from the defense, unless the defense waives discovery under CPL § 245.75.
The newly enacted provisions of CPL § 245.50 require that the People comply with the discovery obligations enumerated in Section 245.20 as a precondition to a valid statement of readiness. Once initial discovery is fulfilled, the People must affirm their compliance by filing a "certificate of compliance" on the defense and the court (see CPL § 245.50 [1] ). Subdivision three of § 245.50, entitled "Trial Readiness," states "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 [of compliance]" (CPL § 254.50[3]).2 CPL § 30.30 was also amended to incorporate this change to the prosecution's capacity to state ready for trial, and now states that "any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20" ( CPL § 30.30[5] ). Once the certificate of compliance is filed by the prosecution, the defense is entitled to contest its validity on the record (id. ). Furthermore, once the People answer ready, the court is required to conduct an immediate inquiry into the People's actual readiness, and if not convinced the People are ready, the statement of readiness is deemed invalid for speedy trial purposes ( CPL § 30.30[5] ).
According to the sworn information in this case, an officer responded to an accident between defendant's motorcycle and another vehicle on July 29, 2019 at 2:05 a.m. on Hamilton and Third Avenue in Kings County (see Superseding Information dated Jan. 10, 2020, at 1). The defendant was taken to a hospital for treatment of injuries sustained in the accident. The police officer alleges that the defendant displayed signs of intoxication, namely slurred speech and an odor of alcohol on his breath, and that he admitted to having two beers (id. at 1). The defendant was asked to submit to a breathalyzer test but refused to do so (id. ). The police officer also alleges that he ascertained that the defendant's license to drive had previously been revoked for a prior conviction for criminally negligent homicide and that he observed an 18-inch long knife on defendant's belt (id. at 2).
The defendant was arraigned on August 2, 2019, while the defendant was still in the hospital, and the case was adjourned to September 11, 2019 for the People to obtain the supporting deposition of the other driver in the accident who observed the defendant operating the motorcycle. As the People did not have that supporting deposition on the next date, the case was adjourned again for conversion to November 15, 2019. The People filed the supporting deposition and a statement of readiness off-calendar on October 21st. On November 15, 2019, the complaint was deemed an information and the matter was adjourned for discovery by stipulation until December 5, 2019.
On December 5th, the People provided discovery to the defense counsel, including the footage from the officer's body-worn camera, the 911 call, Sprint report and radio runs, and the police paperwork. The case was then adjourned for the first time for hearings and trial to January 10, 2020.
On December 6th, the People applied for and obtained a search warrant to seize a sample of the defendant's blood taken while he was being treated at the hospital for injuries sustained during the accident and submit it for testing. On January 2nd, 2020, the People received a one-page report from the forensic laboratory of the Office of the Chief Medical Examiner ("OCME") showing results of .21% ethanol for defendant's blood sample.
On January 10th, 2020, the first scheduled trial date, the People announced ready for trial and filed a certificate of compliance ("COC"), which included an inventory of discovery previously provided on December 5th, 2019, as well as additional discovery shared electronically on January 7th and 8th, including the search warrant materials and the request for a laboratory examination report. On this date, the People also served defense counsel with the one-page OCME laboratory report and acknowledged that additional OCME material regarding the blood draw existed and had been requested from the OCME but was not yet in the People's possession. The defendant challenged the validity of the COC arguing that under CPL § 245.20(1) (j) the People were required to provide the underlying OCME toxicology case file and that the outstanding discovery rendered the COC invalid.
In a colloquy with the Court, the People stated that they were prepared to proceed with the trial as a refusal case, without using the blood draw as evidence in their case. Further, the People detailed their efforts to obtain the outstanding data from OCME, including a request for expedited production as well as daily follow up on the progress of their request for the file.
In a preliminary oral ruling, this Court agreed that the underlying OCME casefile fell within the statutory discovery provision for "reports, documents, records, data, calculations or writings... concerning scientific tests relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity" (see CPL § 245.20 (1) (j) ). The Court directed the People to file a supplemental COC and stated the Court "did not believe [the People] made a valid statement of readiness today." (tr. of...
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