People v. Canosa
| Decision Date | 11 March 2013 |
| Docket Number | No. 2011NA004788.,2011NA004788. |
| Citation | 969 N.Y.S.2d 805,38 Misc.3d 1231,2013 N.Y. Slip Op. 50354 |
| Parties | The PEOPLE of the State of New York, v. Joseph CANOSA, Defendant. |
| Court | New York District Court |
OPINION TEXT STARTS HERE
Kathleen Rice, Nassau County District Attorney.
Christopher Devane, Esq., Attorney for Defendant.
The Defendant is charged with Driving While Intoxicated and Driving on the Shoulder, in violation of VTL §§ 1192(3) and 1131, respectively.
By Notice of Motion dated September 6, 2012 the Defendant moved to dismiss this matter pursuant to CPL §§ 170.30(1)(e) and 30.30(1)(b). The People opposed that motion. By Decision and Order dated November 16, 2012, Hon. Robert H. Spergel set the matter down for a hearing to be held on January 9, 2013. On that date, the matter was adjourned to February 11, 2013.
On February 11, 2013, Judge Spergel having been elevated to the County Court, the matter came on for hearing before this court (Engel, J.). At that time no witnesses were called; and, the parties were heard, at length, on the issues presented. The argument of the parties made clear that there were no disputed issues of fact upon which testimony need have been offered. Only questions of law remained to be resolved in relation to the uncontroverted facts.
The history of the case is as follows:
The Defendant was arraigned on March 2, 2011. Following his arraignment, at the Defendant's request, the matter was adjourned to March 23, 2011.On that date, the matter was adjourned, at the Defendant's request, to May 12, 2011. Defendant asked for an adjournment, to make motions on May 12, 2011; and, the matter was adjourned to July 7, 2011. At that time, upon the Defendant's request, the matter was adjourned to August 16, 2011. The People consented to the court conducting a Mapp/Huntley/Dunaway1 hearing on August 16, 2011, as requested by the Defendant; and, the matter was adjourned, for hearing, to October 14, 2011. The matter was then adjourned for hearing, all at the Defendant's request, from October 14, 2011 to December 8, 2011; from December 8, 2011 to January 24, 2012; and from January 24, 2012 to February 24, 2012.
On February 24, 2012 the People were not ready to proceed with the hearing and requested that the matter be adjourned to March 2, 2012. The Defendant then requested an adjournment from March 2, 2012 to March 28, 2012; and, the matter was adjourned to the latter date.
On March 6, 2012 the People filed and served upon the Defendant a Certificate of Readiness for Trial.
On March 28, 2012 the People were not ready to proceed with the hearing and requested that the matter be adjourned to April 4, 2012. The court adjourned the matter to May 11, 2012.
On May 5, 2012 the People filed and served on Defendant a Certificate of Readiness for Hearing.
On May 11, 2012 the People were not ready to proceed with the hearing and requested that the matter be adjourned to May 18, 2012. The court adjourned the matter to June 14, 2012.
On June 14, 2012 the People were not ready to proceed with the hearing and requested that the matter be adjourned to June 21, 2012. The court adjourned the matter to July 24, 2012.
On July 24, 2012 defense counsel was engaged in a hearing before Judge Ferrell and was not ready to proceed with the hearing. The matter was then adjourned to August 8, 2012.
On August 8, 2012 the Defendant requested time to file this motion; and, the matter was adjourned, for that purpose, to September 27, 2012.
Based upon the foregoing, it is uncontroverted that five hundred seventy three (573) days have passed since the Defendant was arraigned. It is likewise without controversy that the first three hundred fifty seven (357) days of delay, between March 2, 2011 and February 24, 2012, were the result of the Defendant's request or consent for an adjournment. Similarly, the delay of sixty five (65) days between July 24, 2012 and September 27, 2012 was the result of defense applications for adjournments. The period which remains in controversy is the one hundred fifty one (151) days between February 24, 2012 and July 23, 2012, inclusive.
The Defendant argues that the entire period in controversy is to be charged to the People. The Defendant suggests that the People's Certificate of Readiness For Trial, filed and served on March 6, 2012, was illusory. In support of this argument, the Defendant points to the People's failure to be ready to proceed with the stipulated hearing on four (4) successive dates, each time requesting a one (1) week adjournment, but failing to be ready for the hearing on the next date.
The People argue that they are to be charged with only thirty two (32) days of delay. It is the People's position that, having declared their readiness for trial on March 6, 2012, they are only to be charged with the time they requested on each adjourned date.
To resolve these issues, one must be familiar with the concepts of how the People declare their readiness, what it means to be “ready for trial,” “pre-readiness” adjournments by the People and “post-readiness” adjournments by the People.
How the People declare their readiness for trial was squarely addressed by the Court of Appeals in People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 890 (1985) The court made clear:
that ready for trial' in CPL 30.30(1) encompasses two necessary elements. First, there must be a communication of readiness by the People which appears on the trial court's record. This requires either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk, to be placed in the original record (citations omitted). As the prosecutor must make an affirmative representation of readiness (citation omitted), he may not simply rely on the case being placed on the trial calendar.
The second requirement under the statute, ..., is that the prosecutor must make his statement of readiness when the People are in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness.
See also: People v. McKenna, 76 N.Y.2d 59, 556 N.Y.S.2d 514 (1990); People v. Chavis, 91 N.Y.2d 500, 673 N.Y.S.2d 29 (1998)
In determining the People's present readiness, for speedy trial purposes, “[t]he inquiry is whether the People have done all that is required of them to bring the case to a point where it may be tried ( see, People v. McKenna, 76 N.Y.2d 59, 64–65).” People v.. England, 84 N.Y.2d 1, 4, 613 N.Y.S.2d 854 (1994); See also: People v. Carter, 91 N.Y.2d 795, 676 N.Y.S.2d 523 (1998); People v.. Beasley, 69 AD3d 741, 893 N.Y.S.2d 201 (2nd Dept.2010) While “[t]he test is whether the People are able to present their case and do so immediately[,]” People v. Robinson, 171 A.D.2d 475, 477, 567 N.Y.S.2d 401 (1991); See also: People v. Peters, 31 Misc.3d 131(A), 927 N.Y.S.2d 818 (App. Term 9th & 10 Jud. Dists.2011) “[t]he People are not required to contact their witnesses on every adjourned date (citation omitted), nor do they have to be able to produce their witnesses instantaneously in order for a statement of readiness to be valid ( see, People v. Dushain, 247 A.D.2d 234, 669 N.Y.S.2d 30lv. den.91 N.Y.2d 1007, 676 N.Y.S.2d 135, 698 N.E .2d 964).” People v. Camillo, 279 A.D.2d 326, 719 N.Y.S.2d 239 (1st Dept.2001)
The People's declaration of readiness “is presumed to be accurate and truthful (see People v. Caussade, 162 A.D.2d 4, 12, 560 N.Y.S.2d 648,lv. denied76 N.Y.2d 984, 563 N.Y.S.2d 772, 565 N.E.2d 521)[;]” People v. Acosta, 249 A.D.2d 161, 674 N.Y.S.2d 2 (1st Dept.1998)lv. den.92 N.Y.2d 892, 680 N.Y.S.2d 56 (1998), and, having declared their readiness, absent a substantial break in the proceedings, “they are under no obligation to continually repeat that declaration upon each subsequent appearance in court (People v. Cortes, 80 N.Y.2d 201, 214, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992];People v. Reid, 214 A.D.2d 396, 625 N.Y.S.2d 171 [1995] ).” People v. Reed, 19 AD3d 312, 313, 798 N.Y.S.2d 47, 50 (1st Dept.2005)lv. den.5 NY3d 832, 804 N.Y.S.2d 46 (2005) Moreover, “the fact that the People are not ready on subsequent adjourned dates, after they have filed a certificate of readiness, does not render their certificate of readiness illusory (People v. Anderson, 105 A.D.2d 38 [1984],aff'd66 N.Y.2d 529 [1985];see also Robinson, 171 A.D.2d 475).” People v. Peters, supra.; See also: People v. Douglas, 264 A.D.2d 671, 696 N.Y.S.2d 115 (1st Dept.1999)lv. den. 94 N.Y.2d 864, 704 N.Y.S.2d 537 (1999)
Prosecutorial delay before the People's announcement of ready will be treated differently than prosecutorial delay after the People's announcement of ready for purposes of calculating speedy trial time. People v. Anderson, 66 N.Y.2d 529, 498 N.Y.S.2d 119 (1985) “Pre-readiness” delay, unless otherwise excludable, [ See:CPL § 30.30(4) ], will be charged entirely to the People, whether they asked for the entire period of the adjournment or not. In the “pre-readiness” posture, “they cannot take advantage of court congestion so as to ignore their own responsibility of being ready for trial on time ( see, People v. Brothers, 50 N.Y.2d 413, 417–418, 429 N.Y.S.2d 558, 407 N.E.2d 405,supra ).” People v. Kendziz, supra. 338, 486 N.Y.S.2d 888, 891 (1985); See also: People v. Smith, 82 N.Y.2d 676, 601 N.Y.S.2d 466 (1993) In a “post-readiness” posture, however, the People will only be charged with those periods of delay which are solely the result of the People's conduct. See: People v. Anderson, supra.; People v. Cortes, 80 N.Y.2d 201, 590 N.Y.S.2d 9 (1992); People v. Sawh, 58 AD3d 760, 870 N.Y.S.2d 803 (2nd Dept.2009) The People shall not be charged with periods of delay not of their making and outside their control, i.e. calendar congestion or the convenience of the court. People v. Gross, 87 N.Y.2d 792, 642 N.Y.S.2d...
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...the entire adjournment is chargeable to the People unless otherwise specifically excluded under C.P.L. § 30.30(4)."); People v. Canosa, 38 Misc.3d 1231(A), at *3 Cty. Dist. Ct. 2013) (stating the same). Against this statutory framework, the People argue that the Court can also freely exclud......