People v. Braithwaite

• Decision Date: 04 May 2010
• Docket Number: No. 2008KN040076.,2008KN040076.
• Citation: 2010 N.Y. Slip Op. 51479,28 Misc.3d 1224,958 N.Y.S.2d 309
• Parties: The PEOPLE of the State of New York v. Alvin BRAITHWAITE, Defendant.
• Court: New York Criminal Court

28 Misc.3d 1224

958 N.Y.S.2d 309

2010 N.Y. Slip Op. 51479

The PEOPLE of the State of New York

v.Alvin BRAITHWAITE, Defendant.

No. 2008KN040076.

Criminal Court, City of New York, Kings County.

May 4, 2010.

Richard J. Korn, Esq., Brooklyn, attorney for defendant.

Charles J. Hynes, District Attorney, Kings County, by Jacqueline Kagan, Esq., Assist. D.A., Brooklyn, of Counsel for the People.

DEVIN P. COHEN, J.

Defendant is currently charged with Sexual Abuse in the Third Degree (PL § 130.55), Sexual Abuse in the Second Degree (PL § 130.60[2] ), Harassment in the Second Degree, (PL § 240.26[1] ), and Endangering the Welfare of a Child (PL § 260.10[1] ), the top count being a class A misdemeanor. Defendant moves to dismiss the accusatory instrument pursuant to CPL § 30.30. After submissions and pursuant to this court's prior order of February 9, 2010, a hearing was held on March 26, 2010. After review of all papers and exhibits submitted and after that hearing, the court finds as follows:

The Parties' Contentions

Defendant argues that the People have failed to demonstrate that the detective on the case was unable to testify for medical reasons on four consecutive adjourn dates from February 6, 2009 to July 16, 2009. Accordingly, defendant asserts that the People should be charged with as much as 126 days of post-readiness delay (as of the initial making of this motion).

The People contend they adequately established that the detective on the case was unable to testify for medical reasons on the adjourn dates in question. The People further argue that their detective's unavailability qualifies as an “exceptional circumstance” under CPL § 30.30(4)(g) and that the period from February 6, 2009 to July 16, 2009 should be excluded from the speedy trial calculus. Thus, the People argue, they should only be charged with 34 days of delay (as of the initial making of this motion).

After review of the defendant's motion and the People's responsive submissions, the court scheduled a hearing related to the motion (Devin P. Cohen, J., interim order of Feb. 2, 2010). On March 26, 2010, the court conducted a hearing on the issue of the detective's work and physical status during the time period at issue, and whether that qualified as an “exceptional circumstance” the duration of which should be excluded pursuant to CPL § 30.30(4)(g). The court's determinations, based on the hearing, the motion and opposition papers, as well as the People's supplemental submissions, are set forth below.

Analysis

Pursuant to CPL § 30.30(1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument. (CPL § 30.30[1]; People v. Cooper, 98 N.Y.2d 541, 546 [2002] ). Where the highest charge against a defendant is a class A misdemeanor, the People are ordinarily required to state their readiness for trial within 90 days of commencing the criminal action (CPL § 30.30[1][b]; PL § 70.15). In this case, however, the original accusatory instrument also charged defendant with Sexual Abuse in the First Degree (PL § 130.65), a felony. CPL § 30.30(5)(c), requires that “[w]here a felony complaint is replaced with a new accusatory instrument charging a class A misdemeanor, the People must be ready for trial within 90 days from the filing of the new instrument or six months from the filing of the felony complaint—whichever is shorter” (People v. Spector, 181 Misc.2d 522, 523 [Crim Ct, New York County 1999], affd 731 N.Y.S.2d 331 [NY Sup App Term 2001], lv denied,96 N.Y.2d 942 [2001] ).

In this case, the felony charge was dismissed and the charges reduced on June 4, 2008, four days from the date when the felony complaint was filed. Here, the 90 day period running from the filing of the misdemeanor complaint is shorter than the six month (184 day) period running from the felony arraignment. Thus, pursuant to CPL § 30.30(5)(c), the speedy trial clock was reset when the misdemeanor complaint was filed, and the People had 90 days from June 4, 2008 to be ready for trial.

To prevail in the instant motion, defendant must demonstrate a delay in excess of 90 days from the filing of the misdemeanor complaint ( see People v. Santos, 68 N.Y.2d 859, 861 [1986];People v. Khachiyan, 194 Misc.2d 161, 166 [Crim Ct, Kings County 2002] ). Once defendant has made such a showing, the burden shifts to the People to establish that certain periods within that time should be excluded. ( see Santos, at 861; Khachiyan, at 166).

The Court of Appeals has held that “ready for trial” within the meaning of CPL § 30.30(1) requires both “a communication of readiness which appears in the trial court's record” and that the People “make the statement of readiness when [they] are, in fact, ready to proceed” ( People v. Kendzia, 63 N.Y.2d 331 [1985] ). The question of whether the People are “in fact ready to proceed” involves an “inquiry [as to] whether the People have done all that is required of them to bring the case to the point where it may be tried.” (People v. England, 84 N.Y.2d 1, 4 [1994] ).

Where the court grants adjournments at the People's request after the People have announced ready for trial, the burden rests upon the People to clarify the basis for the adjournment on the record. (People v. Liotta, 79 N.Y.2d 841 [1992] ). The purpose of this rule is to enable the court to properly determine chargeable time on a subsequent CPL § 30.30 motion. ( Id. at 841). In general, adjournments requested or initiated by the defense are excluded. (CPL § 30.30[4][b]; see People v. Klaus, 104 A.D.2d 566 [2d Dept 1984]; People v. Jenkins, 286 A.D.2d 634 [1st Dept 2001], lv denied97 N.Y.2d 683 [2001] ).

CPL § 30.30(4)(g) states, in relevant part:

“In computing the time within which the people must be ready for trial ... the following periods must be excluded ... other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised reasonable diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period ...”

The Court of Appeals has interpreted “exceptional circumstances” to mean that “where the People are truly unable to take necessary steps to prepare for trial and announce readiness due to circumstances which are beyond their control, the CPL § 30.30 clock must stop temporarily while those circumstances persist.” (People v. Smietana, 98 N.Y.2d 336, 341 [2002] ).

The court finds that a total of 701 days have elapsed from the filing of the misdemeanor complaint, to date. Thus, the burden has shifted to the People to demonstrate that certain periods should be excluded from the speedy trial calculus.

Calculating Includable and Excludable Time ¹

The Period from May 30, 2008 to June 4, 2008

Defendant was arraigned on the felony complaint on May 30, 2008. The case was adjourned to June 4, 2008 for grand jury action. On June 4, 2008 in AP1F, the People dismissed the felony charges, reducing the case to a misdemeanor and filed a superseding information with the court. As previously discussed, the four day period from the felony arraignment to the reduction of the charges and filing of the misdemeanor complaint is excluded from the speedy trial calculus by operation of law ( seeCPL § 30.30[5][c] ). Pursuant to CPL § 30.30(5)(c), on June 4, 2008, the speedy trial clock was reset and the People had 90 days to be ready for trial. Accordingly, as of June 4, 2008, the People are charged with 0 days of delay.

The Period from June 4, 2008 to June 10, 2008

On June 4, 2008, the People served and filed a copy of the superseding information with the court. The case was adjourned to June 10, 2008 for open file discovery (OFD) and, it appears, for the People to serve the superseding information on defense counsel. The People concede that as of June 10, 2008 they should be charged with 6 days of post-readiness delay.

The Period from June 10, 2008 to June 23, 2008

On June 10, 2008, the People served and filed a modified superseding information with the court and on defense counsel and announced ready for trial. The case was then adjourned to June 23, 2008 for discovery by stipulation (DBS). Pursuant to CPL § 30.30(4)(a), adjournments for DBS are excluded from speedy trial calculations, irrespective of the People's readiness for trial. ( see People v. Caussade, 162 A.D.2d 4, 8 [2d Dept] lv denied,76 N.Y.2d 984 [1990];People v. Lucas, 25 Misc.3d 1213[A] [Crim Ct, Kings County 2009] ). The court notes that defendant does not argue in his moving papers that the people should be charged with any time for this adjournment. Accordingly, as of June 23, 2008, the People are charged with 6 days of delay.

The Period from June 23, 2008 to July 28, 2008

On June 23, 2008, defense counsel was not present and the People filed DBS with the court. The case was adjourned to July 28, 2008 for defense counsel to appear. The People are not charged with any period where defense counsel fails to appear. (CPL § 30.30[4][f]; see People v. Seabrook, 126 A.D.2d 583 [2d Dept 1987] ). The defendant does not suggest that the People should be charged with any time for this adjournment. Accordingly, as of July 28, 2008, the People are charged with 6 days of delay.

The Period from July 28, 2008 to October 22, 2008

On July 28, 2008, the People served further discovery on defense counsel and the court adjourned the case to October 22, 2008 for hearings and trial. The People are not charged with this adjournment because defense counsel was absent on the prior adjourn date and the case was adjourned exclusively for defense counsel to appear. Furthermore, the adjournment from discovery to hearings or trial is “a court adjournment for scheduling purposes” established to ease...