People v. Byrd

• Decision Date: 11 July 1984
• Citation: 124 Misc.2d 987,478 N.Y.S.2d 542
• Parties: The PEOPLE of the State of New York v. Cardozia BYRD, Defendant.
• Court: New York City Court

Page 542

478 N.Y.S.2d 542

124 Misc.2d 987

The PEOPLE of the State of New York v. Cardozia BYRD, Defendant.

Criminal Court of the City of New York Kings County.

July 11, 1984.

Elizabeth Holtzman, Dist. Atty., Kings County by Daniel Rausher, Asst. Dist. Atty., for the People.

Caesar Cirigliano, Legal Aid Society, Brooklyn by Jeffrey A. Goldberg, New York City, for defendant.

Decision and Order

STEVEN W. FISHER, Judge.

This motion to dismiss presents an issue of apparent first impression. Its resolution may have a significant impact upon trial capacity of the Criminal Court.

The relevant statutory provisions are familiar.

Where a defendant is charged with a class "A" misdemeanor, he is entitled to a jury trial (CPL 340.40, subd. 2), and the People must be "ready for trial" within ninety days of the commencement of the action, less excludable periods (CPL 30.30, subd. 1, par. & subd. 4). In contrast, where a defendant in the City of New York is charged with no more than a class "B" misdemeanor, he has no constitutional or statutory right to a jury trial (see, CPL 340.40, subd. 2; Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 464 N.Y.S.2d 392, 451 N.E.2d 150), but the People must be "ready for trial" within sixty days of the commencement of the action, less excludable time (see CPL 30.30 subd. 1, par. & subd. 4).

The issue at bar directly concerns these statutory rules and arises out of a policy adopted by the District Attorney of Kings County aimed at increasing the number of cases tried in Criminal Court. In selected cases, the prosecutor will move to reduce class "A" misdemeanors to class "B" misdemeanors in order to avoid time-consuming jury trials. The question presented here is whether such a reduction must lead to dismissal where it occurs after the passage of more than sixty days, chargeable to the People under CPL 30.30.

The facts of the case are essentially undisputed.

On October 2, 1983, the defendant was arraigned upon a felony complaint charging him with assault in the first degree and criminal possession of a weapon in the fourth degree. On October 18, 1983, the felony assault charge was reduced to assault in the third degree and, as a consequence, the defendant faced two class "A" misdemeanors. On December 8, 1983, the People answered ready for trial although the complaint had yet to be converted to an Information. On December 20, 1983, the corroborating affidavit of the complainant was filed, thereby converting the complaint. Although not directly reflected in the Court papers, the People allege, and the defendant does not deny, that the prosecutor answered ready for trial when, on January 12, 1984, the case next appeared on the calendar.

On March 12, 1984, after several adjournments on which the case was marked "ready and passed", the People moved to reduce the charges to attempted assault in the third degree and attempted criminal possession of a weapon in the fourth degree, both class "B" misdemeanors. The prosecutor announced that he was ready, and the case was sent out for a non-jury trial. The defendant, however, sought and was granted an opportunity to file the instant motion.

The defendant contends that, as he now stands charged with only class "B" misdemeanors, the case against him must be dismissed because the People were not ready within sixty days. The People argue that they have satisfied the readiness requirement of CPL 30.30 and that the motion to dismiss should therefore be denied.

It is generally held that, to be "ready for trial" within the meaning of CPL 30.30, the People must file an accusatory instrument sufficient to confer trial jurisdiction upon the Court (see People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548) and must communicate their readiness to the Court on the record (see, e.g., People v. Hamilton, 46 N.Y.2d 932, 933, 415 N.Y.S.2d 208, 388 N.E.2d 345; People v. Brothers, 50 N.Y.2d 413, 429 N.Y.S.2d 558, 407 N.E.2d 405). Indeed, it has been broadly stated that, once the People announce their readiness for trial, the demands of CPL 30.30 are satisfied and the statute will no longer support dismissal regardless of the reason for any subsequent delays in reaching the case for trial (see, e.g., People v. Giordano, 56 N.Y.2d 524, 525, 449 N.Y.S.2d 955, 434 N.E.2d 1333; People v. Moorhead, 61 N.Y.2d 851, 473 N.Y.S.2d 967, 462 N.E.2d 144; People v. Evans, 99 A.D.2d 353, 472 N.Y.S.2d 696; People v. Josefson, 100 A.D.2d 630, 473 N.Y.S.2d 594) ¹

Here, the People filed a sufficient Information on December 20, 1983, and thereafter announced their readiness for trial on January 12, 1984, some eighty-six days after the felony assault charge was reduced to a class "A" misdemeanor. Since under these circumstances, the People were initially required to be ready for trial within ninety days of the reduction of the felony charge (see, CPL 30.30 subd. 5, par. ), there plainly would have been no violation of CPL 30.30 had the case remained one involving class "A" misdemeanors. The essence of the defendant's present argument is that, although the People's statement of readiness was timely when made, the subsequent reduction to class "B" misdemeanors should have had the effect of retroactively requiring the People to have been ready within sixty rather than ninety days. I decline to so hold.

It has been said in a related context that "District Attorney has almost unfettered discretion in determining how and when to prosecute, including the right to reduce, add or amend charges" (People v. Williams, 120 Misc.2d 68, 78, 465 N.Y.S.2d 648; see gen. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752; People v. DiFalco, 44 N.Y.2d 482, 486, 406 N.Y.S.2d 279, 377 N.E.2d 732). It is frequently the case that trial does not immediately follow the People's first assertion of readiness and, in the interim, a prosecutor may exercise his discretion to reduce charges for any one of a variety of reasons. It may be...