People v. Castillo
| Decision Date | 04 October 1994 |
| Citation | 619 N.Y.S.2d 487,162 Misc.2d 894 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Javier CASTILLO, Richard Thornton & William Alicea, Defendants. |
| Court | New York Supreme Court |
Robert T. Johnson, Dist. Atty. (Lisa Chambers, New York City, of counsel), for plaintiff.
Andrew Katz, Legal Aid Soc., for Mr. Castillo.
Ron Laskorski, New York City, for Mr. Thornton.
Anthony Dellicarri, New York City, for Mr. Alicea.
The novel question presented in this case is whether certificates of readiness served off-calendar will toll statutory speedy trial time where the People are under Court direction to announce their readiness, on notice to the defense, in open court. I hold that, under such circumstances, readiness for trial is not effectively communicated and speedy trial time continues to run.
The defendants, charged with Criminal Possession of a Weapon (PL Sec. 265.02), move to dismiss the Indictment for failure of the People to bring them to trial within the statutory period set forth in CPL Sec. 30.30(1)(a). Defendant Castillo, also, moves to dismiss the Indictment pursuant to CPL Sec. 30.20 and the United States and New York Constitutions. U.S. Const., Amend. XIV; N.Y. Const., Art. I, Sec. 6. For the reasons which follow, the defendants' motions to dismiss the Indictment pursuant to CPL Section 30.30(1)(a) are granted. Defendant Castillo's motion to dismiss based on an alleged violation of his constitutional rights is denied.
CPL Section 30.30(1)(a)
CPL Section 30.30(1)(a) provides for dismissal of a felony charge when the People are not ready for trial within six months of the commencement of a criminal action. The six month period begins to run with the filing of an accusatory instrument [CPL Sec. 1.20(16), (17); People v. Sinistaj, 67 N.Y.2d 236, 240, 501 N.Y.S.2d 793, 492 N.E.2d 1209 (1986) ], and the period is computed in terms of calendar months, not necessarily 180 days. People v. Cortes, 80 N.Y.2d 201, 207 ftn. 3, 590 N.Y.S.2d 9, 604 N.E.2d 71 (1992); People v. Rhee, 111 A.D.2d 655, 490 N.Y.S.2d 215 (1st Dept.1985).
The People's readiness to go forward is objectively established when they express their present readiness on the record or when they file a certificate of readiness with the court and notify defense counsel. People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985). Accord People v. Smith, 82 N.Y.2d 676, 678, 601 N.Y.S.2d 466, 619 N.E.2d 403 (1993). However, "ready for trial" within the meaning of CPL Section 30.30 requires more than a mere declaration of readiness. The People, in fact, must be ready to proceed. People v. Smith, supra, 82 N.Y.2d at 678, 601 N.Y.S.2d 466, 619 N.E.2d 403; People v. Kendzia, supra, 64 N.Y.2d at 337, 486 N.Y.S.2d 888, 476 N.E.2d 287. The People are ready within the meaning of the statute when they "have done all that is required of them to bring the case to a point where it may be tried." People v. England, 84 N.Y.2d 1, 613 N.Y.S.2d 854, 856, 636 N.E.2d 1387, 1389 (1994).
Prior to the People's expression of readiness, the onus is on them to establish that an adjournment is excludable once a defendant has shown delay beyond the statutory parameters. People v. Santos, 68 N.Y.2d 859, 861, 508 N.Y.S.2d 411, 501 N.E.2d 19 (1986). However, after the People have announced readiness, the burden shifts to the defendant. People v. Cortes, supra, 80 N.Y.2d at 215, 590 N.Y.S.2d 9, 604 N.E.2d 71.
In the instant case, speedy trial time began to run on May 15, 1993, the day the defendants were arrested and arraigned upon the felony complaint. See CPL Sec. 1.20(16), (17); People v. Sinistaj, 67 N.Y.2d 236, 240, 501 N.Y.S.2d 793, 492 N.E.2d 1209 (1986). The People then had 184 days--May 15th until November 15th--to bring this case to trial. See People v. Cortes, 80 N.Y.2d 201, 207 ftn. 3, 590 N.Y.S.2d 9, 604 N.E.2d 71 (1992). Allowing for excludable delay, the People failed to meet their statutory, speedy trial obligation.
The defendants were not arraigned on this indictment until June 15, 1993. The 31 days from May 15th until June 15th are chargeable to the People. See People v. Correa, 77 N.Y.2d 930, 931, 569 N.Y.S.2d 601, 572 N.E.2d 42 (1991) (). Although the People contend that the May 20, 1993 adjournment is excludable because it was precipitated by the defendants' requests to testify before the Grand Jury, the defendants do not concede this point and the People have not provided the Court with the minutes of the relevant proceeding. Since the defense has made a prima facie showing of delay in excess of six months and since the People, therefore, bear the burden of establishing that any pre-readiness delay is excludable and have failed to do so, they must be held responsible for this 6 days. See People v. Santos, supra, 68 N.Y.2d at 861, 508 N.Y.S.2d 411, 501 N.E.2d 19.
The People acknowledge their responsibility for the 43-day period encompassing the June 15th and July 8th adjournments. On July 27th, the defense requested a motion schedule. Accordingly, the interval from July 27th until October 10th, taken up with defense motions, the People's answers thereto and the Court's decision, is excludable. CPL Sec. 30.30(4)(a). Similarly, the November 19th adjournment granted to schedule the pre-trial hearings ordered as a result of the defendants' motions, tolled speedy trial time. See People v. Green, 90 A.D.2d 705, 455 N.Y.S.2d 368 (1st Dept.1982) ().
On each of the next five adjourned dates, the People answered "not ready" on the call of the calendar. Much effort and time was expended to ensure the simultaneous presence of the three defense attorneys in a trial ready posture on each of the five dates. The three defendants, all of whom lived out- of-State, were also present on each occasion. Despite the difficulties presented in this multiple defendant litigation, the People never managed to be ready at a time when this case could be heard.
On November 19th, the People were not ready to proceed and requested an adjournment. On December 3rd, they filed a statement of readiness off-calendar with the Clerk of the Supreme Court and mailed it to the defense. Nevertheless, on December 17th, the next court date, the People were not ready to proceed. The case was adjourned to January 7th, and, in order to insure the presence of all four attorneys, counsel were directed not to accept any engagement that would conflict with the hearing of this matter.
On January 7th, defense counsel were prepared to go forward but the People, once more, were not ready to proceed. The assigned Assistant District Attorney, having disregarded the direction to avoid conflicting engagements, was on trial in another matter. To bring about a reasonable likelihood that all parties would be available for trial when the People in fact were ready to proceed, the Court instructed that, should the People wish to announce their readiness for trial before the next scheduled adjourned date, they must advance the case for that purpose on three days' notice to the defense and state their readiness in open court. The direction was disregarded on January 31st when the People filed an off-calendar statement of readiness with the Clerk of the Supreme Court and mailed it to the defense.
On the next scheduled court appearance, March 11th, the People again were not prepared to proceed. At their request, the case was postponed to March 25th. On the 25th, the assigned Assistant was engaged in another trial, and the People announced that they were not ready.
The case, then, was adjourned to June 24th, a date believed by all parties to be beyond the speedy trial limit set by CPL Section 30.30. The People were directed to advance the case on five days' notice if they sought to declare their readiness at any time prior to June 24th. Noting the People's failure to proceed on the four previous court dates, two of which followed off-calendar statements of readiness, the Court apprised the People that off-calendar statements of readiness would be deemed ineffective.
Thereafter, on April 20th, despite the Court's explicit instruction, the People filed another off-calendar certificate of readiness with the Clerk of the Supreme Court and mailed it to defense counsel. As before, no effort was made to personally serve the notices of readiness upon the defense attorneys nor was the case advanced or were the defendants notified. Since the notices were served by mail, they reached their intended beneficiaries substantially after the time the People declared their "readiness."
As a result of the procedure employed on April 20th, it would not have been possible for the People to have proceeded to trial at the time they declared their readiness. The case was not calendared, defense counsel were not aware of the People's readiness at the time the People declared themselves ready and the out-of-State defendants were not available in court to be tried. The same is true for the notices filed and served on December 3rd and January 31st.
Nonetheless, having followed the procedure set forth in People v. Kendzia supra, 64 N.Y.2d at 337, 486 N.Y.S.2d 888, 476 N.E.2d 287, and having...
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People v. Hamilton
...readiness (People v. Cortes, 80 N.Y.2d 201, 215, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992]; see also People v. Castillo, 162 Misc.2d 894, 895-896, 619 N.Y.S.2d 487 [S.Ct. Bx. Co.1994] Turning to the facts at bar, it must first be noted that three of the four adjournments cited by defendant total......