People v. Cabrera
| Decision Date | 28 January 2022 |
| Docket Number | Ind. 7441/18 |
| Citation | 2022 NY Slip Op 22025 |
| Parties | The People of the State of New York v. Adonis Cabrera, Defendant |
| Court | New York Supreme Court |
Appearing on behalf of the Defendant: Jonathan Rosenberg Rosenberg Law
Appearing for the People: Assistant District Attorney Kevin O'Donnell. Kings County District Attorney's Office
On August 2, 2021, pursuant to Criminal Procedure Law (C.P.L.) Section 245.50(1), the defendant moved to challenge the People's February 24, 2020 certificate of compliance and statement of readiness, and to dismiss the indictment pursuant to C.P.L. § 30.30. The People opposed the motion on September 12, 2021. The defendant filed a sur reply on September 27, 2021, and, on December 1, 2021, filed an amended motion. Based upon a review of the Supreme Court file, relevant transcripts, and the papers filed by the parties, the motion is denied.
This action commenced on September 20, 2018, when the defendant was charged with Attempted Rape in the First Degree, and related offenses, for allegedly following a woman from the subway to her place of business, where, once there, he threw her up against the wall, put his hand over her mouth, exposed his penis, grabbed her breasts, tried to pull her pants down all while stating "you know what I want." As the six-month period in which the People are required to be ready for trial is measured by the number of days in the intervening calendar months, the People here are allotted 181 days to be ready for trial (See People v. Cortes, 80 N.Y.2d 201 [1992]). This Court makes the following findings of fact and conclusions of law.
The defendant was arraigned on the felony complaint in Criminal Court on September 20, 2018. On November 9, 2018, the People filed the indictment and a statement of readiness. The case was subsequently adjourned to November 28, 2018 for Supreme Court arraignment. The People concede that the time period from September 20, 2018 to November 9, 2018, is charged to the People. [1]
50 days
On November 28, 2018, the defendant was arraigned in Supreme Court. The case was adjourned to January 29, 2019 for open file discovery and grand jury minutes.
The grand jury minutes were not yet available on January 29, 2019, and the case was adjourned to March 21, 2019 for them.
On March 21, 2019, the grand jury minutes were provided to the TAP Part for review, and the case was adjourned to May 16, 2019 for decision. The defendant does not contest this time period - it is excluded (See People v. Codrington, 222 A.D.2d 692 [2d Dept. 1995]; People v. Harris, 82 N.Y.2d 409 [1993]).
0 days
On May 16, 2019, the TAP Part issued a decision finding the grand jury minutes sufficient. The case was adjourned several times between June 19, 2019 and December 11, 2019 for discovery. These adjournments, all for discovery, are excluded (see People v. Ocasio, 39 Misc, 3d 465; People v. Holden, 260 A.D.2d 233 [1st Dept. 1999]; People v. Anderson, 66 N.Y.2d 529 [1985]). [2]
0 days
On December 11, 2019, the case was adjourned to January 29, 2020 for additional discovery.
On January 1, 2020, sweeping discovery reforms went into effect, repealing C.P.L. Article 240 and replacing it with an entirely new Article - C.P.L. § 245. Under the newly enacted statute, the People cannot be deemed ready for trial until they file a certificate of compliance and statement of readiness. Although courts have wrestled with whether the People are entitled to a reasonable period of time to certify compliance under the new law (see People v Nge, 67 Misc.3d 650 [Crim Ct Kings County 2020]; People v Roland, 67 Misc.3d 330 [Crim Ct Kings County 2020]; People v. Adrovic, 69 Misc.3d 563 [Crim Ct New York County 2020]; People v. Dobrzenski, 69 Misc.3d 333 [City Court, New York, Oneida County 2020]; People v. Napolitano, 67 Misc.3d 1241 (A) [Supreme Court, New York County 2020]; but see People ex rel. Ferro v. Brann, 2021 NY Slip Op. 04897 [2021]), here, where the People failed to supply discovery from May 16, 2019 to January 29, 2020, despite repeated requests, including the failure to turn over surveillance video that was introduced at the grand jury proceeding months earlier, and where they have provided no reason for said prolonged delay, an exclusion cannot be countenanced. The People, therefore, are charged with the time period from January 1, 2020 to January 29, 2020.
28 days
On January 29, 2020, the case was on for the People to complete discovery. The People had not yet certified compliance under the new law, and the case was adjourned to February 18, 2020. This time period is charged to the People.
20 days
On February 18, 2020, the case was on again to complete discovery and for the People to file a certificate of compliance. The People stated that some materials were still outstanding, and the case was adjourned to March 11, 2020 for the People's certificate of compliance.
Off calendar, on February 24, 2020, the People served and filed a certificate of compliance, including a new statement of readiness. The time period from February 18, 2020 to February 24, 2020, is charged to the People.
6 days
On March 11, 2020, the defendant requested March 25, 2020 to file a motion challenging the People's certificate of compliance. As this adjournment was made at the defendant's request for motion practice, this time period is excluded (see People v. Kopciowski 68 N.Y.2d 615 [1986]; People v. Codrington, 222 A.D.2d 692 [2d Dept. 1995]).
On March 20, 2020, as a result of the COVID-19 pandemic, then Governor Andrew Cuomo issued Executive Order Number 202.8 tolling the provisions of C.P.L. § 30.30 through April 19, 2020. Due to the ongoing pandemic, successive Executive Orders extended those tolling provisions through October 19, 2020. [3] Thereafter, the case was administratively adjourned to November 10, 2020, also due to the ongoing COVID-19 pandemic. As such, this period, is excluded (see People v Goss, 87 N.Y.2d 792 [1996]).
0 days
On November 10, 2020, the case was adjourned to February 16, 2021, on consent, for
possible disposition. The defendant does not contest this time period.
0 days
On February 16, 2021, the TAP Part inquired as to whether the defendant intended to file a challenge to the People's February 24, 2020 certificate of compliance. The defendant stated, "I am not asking for a motion schedule because I have no specific documents, I can verify that I am missing." The defendant stated he was not interested in any disposition and requested a Huntley/Dunaway/Mapp hearing. The case was adjourned to May 20, 2021 to set a hearing and trial date. [4] In the interim, the case was administratively adjourned from the Tap Part to this Part for June 14, 2021. As the case was adjourned to set a trial date, was administratively adjourned between Parts, and the pandemic was still shuttering in-person courtroom proceedings, this time period is excluded (see People v Goss, 87 N.Y.2d 792 [1996]; see also People v Robinson, 225 A.D.2d 407 [1st Dept, 1996], lv denied 88 N.Y.2d 884).
On June 14, 2021, the case was before this Court for the first time. Defense counsel filed an affirmation of engagement and the case was adjourned to June 28, 2021.
0 days
On June 28, 2021, the defendant requested a motion schedule to file the instant motion. [5] A motion schedule was set - the defendant filed his motion, the People responded, and the defendant filed a sur reply. The case was adjourned to October 19, 2021 for decision on the motion. On October 19, 2021, the Court was in the midst of reviewing the voluminous submissions by the parties and the case was adjourned to November 18, 2021 for decision. On November 18, 2021, the Court, having myriad questions about the parties' submissions, held a discovery conference pursuant to C.P.L. § 245.35(2). In response to the Court's inquiries regarding the defendant's request for several items of discovery, items of which this Court was entirely unfamiliar, defense counsel replied, "I don't have the ability to answer [your] question[s]", "I don't know what that is" [ inter alia ]. As a result, defense counsel requested time to file an amended motion addressing the Court's questions and the case was adjourned to December 2, 2021 for that amended motion. The People filed their reply on January 5, 2022 and the matter was adjourned to for decision. This time period, from June 28, 2021 through, occasioned by the defendant's motion, is excluded (See People v. Kanter, 173 A.D.2d 560 (2d Dept. 1991); People v. Brown, 136 A.D.2d 715 [2d Dept. 1988]).
0 days
The defendant argues that the People's February 24, 2020 certificate of compliance is invalid. To begin, the People provided discovery to the defendant on June 19, 2019, October 1, 2019, January 29, 2020, February 10, 2020, February 11 2020, and February 19, 2020. Notwithstanding, by motion dated August 2, 2021, the defendant indicated that he was still missing certain discoverable items. Among the missing items were" a FETI interview and cognitive reenactment, all videos and notes taken...
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