People v. Carter

• Decision Date: 09 July 1998
• Citation: 91 N.Y.2d 795,676 N.Y.S.2d 523,699 N.E.2d 35
• Parties: , 699 N.E.2d 35, 1998 N.Y. Slip Op. 6991 The PEOPLE of the State of New York, Appellant, v. Tonya CARTER, Robin Green and Niemah Morgan, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 523

676 N.Y.S.2d 523

91 N.Y.2d 795, 699 N.E.2d 35, 1998

N.Y. Slip Op. 6991

The PEOPLE of the State of New York, Appellant, v. Tonya CARTER, Robin Green and Niemah Morgan, Respondents.

Court of Appeals of New York.

July 9, 1998.

Frank J. Clark, District Attorney of Erie County, Buffalo (Raymond C. Herman and J. Michael Marion, of counsel), for appellant.

Vincent F. Gugino, Linda S. Reynolds and Barbara J. Davies, Buffalo, for Robin Green, respondent.

OPINION OF THE COURT

KAYE, Chief Judge.

This appeal challenges the effectiveness of the People's pre-arraignment statement of readiness under CPL 30.30. In the unusual factual circumstances presented, we conclude that, by declaring readiness at a point when they had done everything required of them to bring the case to trial, the People's statement of readiness tolled the "speedy trial" clock. We therefore reverse the Appellate Division order dismissing the indictment.

I.

A felony complaint was filed on May 31, 1995 in the City Court of Buffalo charging defendants Tonya Carter, Robin Green and Niemah Morgan--as well as two other defendants who are not the subject of this appeal--with assault in the second degree (Penal Law § 120.05[2]; § 20.00) for beating a 21-year-old man with a wooden bat and a wooden club. No appearance ticket, summons or arrest warrant for defendants was issued nor were defendants arraigned in City Court on the complaint.

The People on November 16, 1995 sent letters to defendants at their last-known addresses (noted on the felony complaint) apprising them of their right to testify before a Grand Jury. The letters were returned undelivered with the notations "no such number" (defendants Green and Morgan) and "attempted, not known" (defendant Carter). The record does not indicate when the District Attorney received the returned letters.

On November 22, 1995, an indictment was filed in Erie County Court charging defendants with assault in the first degree (Penal Law § 120.10[1]; § 20.00). When the indictment was handed up later that day, the prosecutor announced the People's trial readiness in open court and again mailed letters to defendants at their last-known addresses. The letters informed defendants of the indictment, the People's statement of readiness and their scheduled arraignment date of November 28, 1995. Defendants failed to appear as scheduled, and bench warrants were issued; the prosecutor at that time reiterated that the People were ready for trial. Defendants Green and Morgan were ultimately arraigned on December 8, 1995 and defendant Carter on January 3, 1996. At each of these proceedings, the prosecutor again noted the People's trial readiness.

Defendants then moved to dismiss the indictment pursuant to CPL 210.20(1)(g) and 30.30(1)(a), alleging that the People's readiness statement on November 22, 1995 was premature because defendants were not present and had not yet been arraigned, and therefore the court lacked jurisdiction over them. Because the statement was invalid, argued defendants, and because the People could not demonstrate that they had exercised due diligence in locating them and ensuring their presence at the arraignments, the People in fact were not ready to proceed to trial when the six-month period expired. The People responded that they had complied with CPL 30.30 by announcing their trial readiness in open court and notifying defendants of their readiness in a written communication, and that the delay in arraigning defendants was excludable postreadiness delay attributable to the court.

The motions were argued before a Judicial Hearing Officer who on June 15, 1996 recommended that defendants' motions be granted and the indictment dismissed. Because the Buffalo City Court had never acquired control over any of the defendants, the JHO reasoned, it was the People's obligation to ensure defendants' appearance for arraignment before the superior court and any delay in doing so was chargeable to the prosecution. Given that defendants were not "produced" within the prescribed six months, in his view, CPL 30.30 had been violated. Supreme Court confirmed the JHO's recommendation and ordered dismissal of the indictment. On the People's appeal, the Appellate Division affirmed, without opinion. A Judge of this Court granted leave to appeal to the People. We now reverse.

II.

Pursuant to CPL 30.30(1)(a), the People must be ready for trial within six months of the commencement of a criminal action accusing a defendant of a felony offense (see also, CPL 1.20[1], [17]; People v. McKenna, 76 N.Y.2d 59, 62, 556 N.Y.S.2d 514, 555 N.E.2d 911). In the instant case, the relevant six-month period from May 31, 1995--when the felony complaint was filed--through November 30, 1995 totaled 183 days. The People were required to state their readiness for trial within that period unless any portions of the period were excludable (see, People v. Sinistaj, 67 N.Y.2d 236, 239, 501 N.Y.S.2d 793, 492 N.E.2d 1209; People v Osgood, 52 N.Y.2d 37, 43, 436 N.Y.S.2d 213, 417 N.E.2d 507; People v. Jones, 105 A.D.2d 179, 188, 483 N.Y.S.2d 345, aff'd 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231).

To be effective, a statement of readiness must be communicated on the record at a time when the People are truly ready to proceed (see, People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287). In People v. Goss, 87 N.Y.2d 792, 794, 642 N.Y.S.2d 607, 665 N.E.2d 177, this Court recognized that where it is possible for the defendant to be arraigned and the trial to go forward within the six-month period, a pre-arraignment statement of readiness can be valid. Thus, a statement of readiness made contemporaneously with the filing of the indictment can be effective to stop the "speedy trial" clock if the indictment is filed at least two days before the CPL 30.30 period ends (see, CPL 210.10[2]; People v. Goss, 87 N.Y.2d at 796-797, 642 N.Y.S.2d 607, 665 N.E.2d 177, supra; cf., People v. England, 84 N.Y.2d 1, 4-5, 613 N.Y.S.2d 854, 636 N.E.2d 1387 [pre-arraignment readiness statement meaningless when People's conduct made arraignment within statutory period impossible] ). Moreover, contrary to defendants' contention, there is no requirement that a defendant be present in order to establish readiness for trial (see, People v. Cortes, 80 N.Y.2d 201, 213, 590 N.Y.S.2d 9, 604 N.E.2d 71; People v. Correa, 77 N.Y.2d 930, 931, 569 N.Y.S.2d 601, 572 N.E.2d 42; People v. Corley, 175 A.D.2d 613, 613-614, 572 N.Y.S.2d 265, lv. denied 78 N.Y.2d 1126, 578 N.Y.S.2d 884, 586 N.E.2d 67).

We agree with the People that they made an effective statement of readiness prior to each defendant's arraignment. On November 22, 1995--eight days before expiration of the six-month period--the People filed the indictment, announced their...