People v. Brown

• Decision Date: 20 December 2016
• Citation: People v. Brown, 2016 NY Slip Op 8482, 28 N.Y.3d 392, 68 N.E.3d 45, 45 N.Y.S.3d 320 (N.Y. 2016)
• Parties: The PEOPLE of the State of New York, Respondent, v. James BROWN, Appellant. The People of the State of New York, Respondent, v. Terrence Young, Appellant. The People of the State of New York, Appellant, v. Earl Canady, Respondent.
• Court: New York Court of Appeals Court of Appeals

28 N.Y.3d 392

68 N.E.3d 45

45 N.Y.S.3d 320

2016 N.Y. Slip Op. 08482

The PEOPLE of the State of New York, Respondent,

v.James BROWN, Appellant.

The People of the State of New York, Respondent,

v.Terrence Young, Appellant.

The People of the State of New York, Appellant,

v.Earl Canady, Respondent.

Court of Appeals of New York.

Dec. 20, 2016.

Robert DiDio & Associates, Kew Gardens (Danielle Muscatello of counsel), for appellant in the first above-entitled action.

Cyrus R. Vance, Jr., District Attorney, New York City (Sylvia Wertheimer and Patrick J. Hynes of counsel), for respondent in the first above-entitled action.

The Legal Aid Society, New York City (Thomas M. O'Brien of counsel), for the Legal Aid Society, amicus curiae.

Cleary Gottlieb Steen & Hamilton LLP, New York City (Ari D. MacKinnon, Darryl G. Stein and Molly B. Calkins of counsel), for The Bronx Defenders, amicus curiae.

Thomas P. Zugibe, District Attorneys Association of the State of New York (Sarah S. Rabinowitz, Morrie I. Kleinbart, Itamar J. Yeger and Tammy J. Smiley ), for District Attorneys Association of the State of New York, amicus curiae.

Seymour W. James, Jr., The Legal Aid Society, New York City (Jonathan Garelick of counsel), for appellant in the second above-entitled action.

Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove, Seth M. Lieberman and Jill Oziemblewski of counsel), for respondent in the second above-entitled action.

Kenneth P. Thompson, District Attorney, Brooklyn (Seth M. Lieberman, Leonard Joblove, Ann Bordley and Eric Gonzalez of counsel), for appellant in the third above-entitled action.

Seymour W. James, Jr., The Legal Aid Society, New York City (Andrew C. Fine of counsel), for respondent in the third above-entitled action.

OPINION OF THE COURT

PIGOTT, J.

In each of these appeals, defendants moved to dismiss the accusatory instrument on speedy trial grounds pursuant to CPL 30.30(1) arguing that the People's off-calendar statements of readiness were illusory because the People were not ready for trial at the next court appearance. The common issue—left open in People v. Sibblies , 22 N.Y.3d 1174, 985 N.Y.S.2d 474, 8 N.E.3d 852 (2014) —is whether, in the event of a change in the People's readiness status, the People or the defendant have the burden of showing that a previously filed off-calendar statement of readiness is illusory. We hold that such a statement is presumed truthful and accurate—a presumption that can be rebutted by a defendant's demonstration that the People were not, in fact, ready at the time the statement was filed. If the People announce that they are not ready after having filed an off-calendar statement of readiness, and the defendant challenges such statement—at a calendar call, in a CPL 30.30 motion, or both—the People must establish a valid reason for their change in readiness status to ensure that a sufficient record is made for the court to determine whether the delay is excludable. The defendant then bears the ultimate burden of demonstrating, based on the People's proffered reasons and other relevant circumstances, that the prior statement of readiness was illusory.

IPeople v. Young

In January 2009, defendant Terrence Young was charged in a misdemeanor complaint with, among other things, assault in the third degree and disorderly conduct. After defendant was arraigned, the People filed an off-calendar statement of readiness and announced ready at several subsequent court appearances.

On November 13, 2009, the People announced not ready for trial explaining that the prosecutor assigned to the case was engaged in another prosecutorial assignment. After the People requested a one-week adjournment, the court adjourned the matter. The People filed an off-calendar statement of readiness on December 18, 2009.

On January 12, 2010, the People again answered not ready for trial and requested an adjournment to January 19, 2010. The People informed the court that they had learned the day before that the New York City Housing Authority (NYCHA) had conducted a hearing related to this case at which defendant and the police officer witness, Officer Lipes, testified. The People explained that they were in the process of obtaining and reviewing the transcript of that proceeding.

The next day, January 13, 2010, the People served and filed another off-calendar statement and affirmations of readiness executed by the prosecutor and Officer Lipes. The People later explained that they had obtained and reviewed the NYCHA transcript on the evening of January 12, 2010. At the January 19, 2010 calendar call, the People stated that they were ready for trial. Defendant subsequently filed a motion to dismiss pursuant to CPL 30.30(1)(b).

Criminal Court denied defendant's motion, rejecting his argument that the entire period from December 18, 2009 to January 12, 2010 should be charged to the People because the December 18 off-calendar statement of readiness was illusory. Defendant was subsequently convicted of disorderly conduct and given a conditional discharge.

The Appellate Term affirmed defendant's conviction, concluding that the People's December 18, 2009 off-calendar statement of readiness was "not illusory, as it accurately reflected the People's position of readiness at the time it was filed" (46 Misc.3d 142[A], 2015 N.Y. Slip Op. 50171[U], *2, 2015 WL 824564 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2015] ). A Judge of this Court granted defendant leave to appeal (25 N.Y.3d 1173, 15 N.Y.S.3d 305, 36 N.E.3d 108 [2015] ).

People v. Canady

After defendant Earl Canady allegedly assaulted a man inside a Brooklyn building, the People filed an information on February 9, 2011 charging him with, among other things, assault in the third degree. The People announced that they were ready for trial, and the case was adjourned for open file discovery.

On March 2, 2011, the People were not ready for trial because the assigned prosecutor was engaged in a trial. The People sought an adjournment to March 8, 2011; the court adjourned the matter to April 19, 2011 stating that the People would be charged with the time from March 2 to March 8.

The People subsequently served and filed an off-calendar statement of readiness on April 18, 2011. The next day, however, at an April 19 calendar call, they announced that they were not ready for trial. The court adjourned the matter and noted that the "People will be charged until they file a statement of readiness." The transcript does not indicate why the People were unready, but the court's records indicate that the People did not have their file. The People served and filed another off-calendar statement of readiness on May 4, 2011.

The court granted defendant's CPL 30.30(1)(b) motion and dismissed the accusatory instrument. The Appellate Term affirmed, concluding, in relevant part, that the April 18, 2011 off-calendar statement of readiness was illusory and, thus, 41 days of delay in the period from March 8, 2011 until April 18, 2011 were chargeable to the People (see 50 Misc.3d 132[A], 2015 N.Y. Slip Op. 51942[U], 2015 WL 9694121 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2015] ). Given its determination, the court did not reach defendant's additional claim of time chargeable to the People. A Judge of this Court granted the People leave to appeal (27 N.Y.3d 1067, 38 N.Y.S.3d 837, 60 N.E.3d 1203 [2016] ).

People v. Brown

In November 2006, defendant James Brown was charged with two counts of robbery in the first degree, and subsequently was indicted on those charges. At a July 9, 2007 court appearance, the People did not answer ready for trial and, concerning an adjourn date, stated that "7/23 is good. The week of 7/30 is bad." Supreme Court adjourned the matter to August 8, 2007. On July 17, eight days after the July 9 appearance, the People filed an off-calendar statement of readiness. This was the first time they had answered ready for trial. But at the subsequent August 8 calendar call, the People answered not ready for trial and failed to provide an explanation as to why they were not ready.

Defendant moved to dismiss the indictment on speedy trial grounds pursuant to CPL 30.30(1)(a), arguing—for the first time in his reply papers—that the July 17, 2007 statement of readiness "was illusory as the People were not ready again on August 8." The court denied the motion and also rejected defendant's request for a hearing as to the discrepancy in the People's readiness responses.

Defendant was found guilty of one count of robbery in the first degree. He was sentenced, as a persistent violent felony offender, to a term of 22 years to life. The Appellate Division affirmed (see 126 A.D.3d 516, 7 N.Y.S.3d 19 [1st Dept.2015] ), and a Judge of this Court granted defendant leave to appeal (25 N.Y.3d 1160, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ).

Defendant raises several other issues in addition to his speedy trial claim. Before trial commenced, the People conceded that a pretrial lineup at which a victim identified defendant was unduly suggestive. After conducting a hearing, the court concluded that an independent source existed for the victim to identify defendant in court. Immediately after the court's ruling, defendant requested that he not be required to sit next to his counsel during the witnesses' attempts to identify him at trial. The court rejected defendant's request. Following a mistrial, the court denied defendant's renewed request that he not be required to sit next to his counsel during attempts to identify him.

Prior to jury selection, the court notified counsel that "[i]n [her] courtroom, when you voir dire, you each have five minutes. I do everything." The court conducted its voir dire of the jurors, and then allowed counsel to question the prospective jurors. During that inquiry, the court reiterated its five-minute rule on numerous occasions and, with the purpose of hastening voir dire, interrupted defendant's counsel multiple times while he interacted with the prospective jurors. Defendant's ...