People v. Caussade

• Decision Date: 17 September 1990
• Citation: 560 N.Y.S.2d 648,162 A.D.2d 4
• Parties: The PEOPLE, etc., Appellant, v. Edward CAUSSADE and Luis Orengo, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 648

560 N.Y.S.2d 648

162 A.D.2d 4

The PEOPLE, etc., Appellant, v. Edward CAUSSADE and Luis Orengo, Respondents.

Supreme Court, Appellate Division Second Department.

Sept. 17, 1990.

Charles J. Hynes, Dist. Atty., Brooklyn (Barbara D. Underwood, Leonard Joblove, Kimberly S. Penner and Peter A. Weinstein, of counsel), for appellant.

Ronald Rubinstein, Kew Gardens, for respondent Edward Caussade and Irwin G. Klein, Cedarhurst, for respondent Luis Orengo (one brief filed).

Before SULLIVAN, J.P., and HARWOOD, BALLETTA and MILLER, JJ.

SULLIVAN, Justice Presiding.

In this case, we are called upon to determine what is meant by the phrase "ready for trial" as used in CPL 30.30, and more specifically, whether a delay by the prosecution in complying with discovery demands will serve to vitiate an otherwise valid statement of readiness.

In an order dated April 7, 1988, the Supreme Court, Kings County, determined that the People had announced their readiness for trial in this case on October 1, 1986, and that the defendants were not denied a speedy trial pursuant to CPL 30.30. However, upon reargument, the Supreme Court determined that the prosecution had not in fact been ready for trial on October 1, 1986, despite the People's statement on the record to the contrary, and that readiness was not effectively announced until March 11, 1987. Since this period exceeded the statutory time limit, the Supreme Court dismissed the indictment in an order dated June 20, 1988. For the reasons stated hereafter, we find that the Supreme Court erred in its determination upon reargument and that reversal of the order of June 20, 1988, and reinstatement of the indictment are warranted.

I

For some period of time prior to March 5, 1986, police officers of the Brooklyn North Narcotics Area had conducted an investigation into the commission of certain illegal activities at a store located at 388 Ridgewood Avenue. As part of this investigation, an undercover police officer obtained employment in the store. Based in part on the observations of the undercover officer, a search warrant for the store was obtained and executed on March 6, 1986. The police officers who conducted the search discovered more than one pound of cocaine, three pounds of marihuana, a triple-beam scale, over $10,000 in cash, a .38 caliber revolver, and a .380 automatic pistol. The defendants, who had been behind the counter in the store during the search, were arrested. Thereafter, the Grand Jury returned Indictment No. 1688/86 charging both defendants with the crimes of criminal possession of marihuana in the second degree, criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the fourth degree (two counts), and criminal possession of a weapon in the third degree (two counts). The defendants were arraigned on this indictment in the Supreme Court, Kings County, on April 17, 1986.

Thereafter, various court appearances were scheduled on consent in order to permit the District Attorney to comply with certain demands made on April 23, 1986, for a bill of particulars, discovery, and Rosario material. The prosecution was given until June 13, 1986, to comply with all outstanding discovery demands, and the defense was given until June 27, 1986, to submit motions. The motions were set down for decision on July 11, 1986. The stenographic minutes for that date reflect that the parties agreed to hearings dealing with Mapp, Dunaway, Franks, Huntley, and Sandoval issues, and with the question of whether any evidence was tainted. There is no indication of any decision by the court as to the defendants' motions. The minutes of October 1, 1986, indicate that following an off-the-record discussion at the bench, the court set the matter down for hearings on November 17. At that point, the Assistant District Attorney unequivocally announced: "People are ready". The defense counsel then sought discovery, prior to the hearings, of all narcotics investigation reports involving the defendants and the subject premises.

On October 31, 1986, the Assistant District Attorney who was handling the case informed the defense counsel by letter that the undercover police officer who was working in the store on March 1, 1986, had been equipped with an electronic device which had recorded conversations made on that date. This letter was apparently written in response to the defendants' earlier demand for discovery (see, CPL 240.20 [1][g]; see also, CPL 240.60, which imposes upon the People a continuing duty to disclose). Copies of the transcripts made from these tapes and of all police reports were turned over to the defense counsel by December 17, 1986. Recorded copies of the tapes were provided to the defense counsel on December 24, 1986. Numerous subsequent appearances were adjourned due to the unavailability of the defendants' attorneys, who were engaged in other trials, the unavailability of one of the defendants as the result of a parole violation, and other reasons. The defendants made a motion, returnable September 21, 1987, to dismiss this indictment on speedy trial grounds pursuant to CPL 30.20 and 30.30. As indicated above, the Supreme Court initially denied this motion, but upon reargument found a violation of CPL 30.30 and dismissed the indictment.

The basic reason advanced by the Supreme Court for altering its decision upon reargument was its determination that the prosecution was not in fact ready for trial on October 1, 1986, despite the Assistant District Attorney's statement that it was. The court buttressed this determination by pointing to the letter of October 31, 1986, regarding the recently discovered tape recordings made by the undercover officer as indicative of the People's lack of readiness for trial, inasmuch as these tapes were required to be turned over to the defense counsel under CPL 240.20(1)(g). Furthermore, the Supreme Court found that the Assistant District Attorney had not even begun his preparation for the trial prior to October 1, 1986. We now reverse, as the foregoing considerations do not constitute prerequisites for a valid statement of readiness by the People.

II

It must be kept in mind that CPL 30.30 is not a true speedy trial statute which requires the trial of a felony within six months. Rather, it requires only that the People announce their readiness for the trial of a felony within that time period (see, People v. Anderson, 66 N.Y.2d 529, 535, 498 N.Y.S.2d 119, 488 N.E.2d 1231; Bellacosa, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL 30.30, at 148-150). In People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287, the Court of Appeals reviewed its prior decisions and explained that a statement of readiness consists of two elements: (1) a communication of readiness by the People which appears on the record, and (2) an indication of present readiness as opposed to a prediction or expectation of future readiness. The court further explained that "communication" requires either: (a) a statement of readiness in open court transcribed by a stenographer or recorded by the clerk, or (b) written notice of readiness sent by the prosecutor to both the defense counsel and the appropriate clerk to be placed in the original record (Prieser, Practice Commentary, McKinney's Cons. Laws of N.Y., 1990 Supp.Pamph., CPL 30.30, at 57). In the present case, it is obvious that on October 1, 1986, there was a communication of readiness made on the record. Hence, the relevant avenue of inquiry concerns whether that communication referred to present readiness for trial. We conclude that it did.

While no judicial decision sets forth the specific requirements for a valid statement of readiness, review of the relevant case law in this area reveals that present readiness for trial is established when the People have a valid accusatory instrument upon which the defendant may be brought to trial (cf., People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548; People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331), where the People have complied with their obligation to produce for trial a defendant in their custody (cf., People v. Jones, 105 A.D.2d 179, 483 N.Y.S.2d 345, affd. 66 N.Y.2d 529, 539-540, 498 N.Y.S.2d 119, 488 N.E.2d 1231) and where the People have complied with all pending proceedings required to be decided before trial can commence (cf., People v. McKenna, 76 N.Y.2d 59, 556 N.Y.S.2d 514, 555 N.E.2d 911).

In the present case, the statement of readiness made by the Assistant District Attorney in open court, and which appears on the record of October 1, 1986, clearly satisfies all of the criteria established in People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287, supra. The hearing court, in its decision made upon reargument, and the defendants on this appeal, take the position that the People could not in fact have been ready on October 1, 1986, because the Assistant District Attorney had not, at that time, complied with the discovery demands of the defendants. Relevant case law demonstrates that this position is in error. It is firmly established that the failure of a District Attorney to comply with the mandates of CPL article 240 relative to discovery is in no way inconsistent with the prosecution's continued readiness (see, People v. Jones, supra [failure to supply supplemental bill of particulars and laboratory reports]; People v. Alicea, 109 A.D.2d 1083, 487 N.Y.S.2d 412, affd. 66 N.Y.2d 529, 542-543, 498 N.Y.S.2d 119, 488 N.E.2d 1231 [failure to transfer drugs to testing laboratory designated by defendant]. The opinion of Justice Levine in People v. Cole, 90 A.D.2d 27, 457 N.Y.S.2d 589, is particularly informative in this regard. In that case, the defendant made a discovery demand on February 4, 1981. By letter dated March 19, 1981, the People consented to provide some...