People v. Cortes

• Citation: 590 N.Y.S.2d 9,604 N.E.2d 71,80 N.Y.2d 201
• Parties: , 604 N.E.2d 71 The PEOPLE of the State of New York, Appellant, v. Edwin CORTES, Respondent. The PEOPLE of the State of New York, Appellant, v. Santo ZENON, Respondent.
• Decision Date: 20 October 1992
• Court: New York Court of Appeals

Page 9

590 N.Y.S.2d 9

80 N.Y.2d 201, 604 N.E.2d 71

The PEOPLE of the State of New York, Appellant, v. Edwin CORTES, Respondent.

The PEOPLE of the State of New York, Appellant, v. Santo ZENON, Respondent.

Court of Appeals of New York.

Oct. 20, 1992.

Charles J. Hynes, Dist. Atty., Brooklyn (Seth M. Lieberman, Jay M. Cohen and Leonard Joblove, of counsel), for appellant in the first and second above-entitled action.

Solomon Rosengarten, New York City, for respondent in the first above-entitled action.

Carol Santangelo and Philip L. Weinstein, New York City, for respondent in the second above-entitled action.

OPINION OF THE COURT

TITONE, Judge.

In each of these cases, more than two years elapsed between the filing of the initial indictment and the date the charges were dismissed because of the prosecution's failure to satisfy the readiness prescriptions of CPL 30.30. The People have appealed from the Appellate Division orders affirming these dismissals. Their appeals raise several novel issues, including the People's accountability for delays resulting from the failure of the County Law article 18-B Panel to promptly supply an attorney to represent defendant Cortes and for a delay that resulted from the dismissal of the original indictments on a ground that was subsequently proven erroneous. The People's appeals also raise questions concerning the excludability of certain periods of prearraignment delay, as well as other periods when the proceedings were postponed without defendants' express consent. Having considered all of the parties' arguments, we conclude that the People's time to prosecute both defendants under CPL 30.30 was exceeded and that, accordingly, the indictments were properly dismissed.

I.

Defendants Edwin Cortes and Santo Zenon were jointly charged with first degree criminal sale of a controlled substance and several other related offenses, all arising out of an incident in which the two men had allegedly sold more than four ounces of cocaine to an undercover officer. Cortes was arrested and, on June 18, 1987, was arraigned on a felony complaint. Both men were subsequently charged in an indictment filed on July 10, 1987. Cortes was arraigned on that indictment on July 21st, and Zenon was arraigned six days later on July 27th. At that point, Zenon was represented by an attorney from the Legal Aid Society. Cortes, whose retained counsel did not appear, was temporarily represented by an attorney assigned by the court.

On the next calendar date, September 9, 1987, Zenon was present without counsel, but neither Cortes, who previously had posted bail, nor his attorney appeared. The case was adjourned to September 29, 1987, at which time the People declared themselves ready to proceed. Since Cortes was still absent, the court ordered that a bench warrant be issued. However, Cortes was not actually returned until February 23, 1988, when he was involuntarily brought into court on the warrant. At that time, Cortes advised the court that he could no longer afford his retained attorney and that he would need assigned counsel to represent him. The case was adjourned until March 1, 1988.

Two more adjournments ensued, the first to give Cortes's new attorney additional time to prepare and the second to enable the People to respond to Cortes's new attorney's discovery motion. On May 5, 1988, the case was again adjourned at both counsels' request, and Cortes's counsel asked to be relieved. That request was granted at the next calendar call on May 31, 1988. However, despite several additional adjournments and the court's submission of "a requisition" to the 18-B Panel, no counsel appeared for Cortes until the October 19, 1988 calendar call.

At that time, the court examined the Grand Jury minutes and discovered that the indictment had been obtained in violation of the Appellate Division's recent decision in People v. Cade, 140 A.D.2d 99, 532 N.Y.S.2d 143, adhered to on rearg. 145 A.D.2d 565, 536 N.Y.S.2d 700, subsequently revd. 74 N.Y.2d 410, 548 N.Y.S.2d 137, 547 N.E.2d 339. ¹ The court immediately dismissed the indictment against both defendants and directed the People to file a written motion for permission to resubmit (see, CPL 210.20[4]. The suggested motion was made on November 17, 1988, and on December 6, 1988 the court granted the motion. A new indictment was not filed, however, until January 17, 1989. Following several more adjournments, Zenon was arraigned on February 16, 1989 and Cortes was arraigned on March 9, 1989. The People announced their readiness to proceed on the new indictment on March 14, 1989.

On the same day that the People's readiness announcement was made, Cortes's attorney failed to appear, and the court ordered new counsel to be assigned. A similar direction was made on the next court date, April 17, 1989, when Cortes's former attorney appeared and formally asked to be relieved. Nonetheless, three more calendar calls ensued during which Cortes had to appear without counsel. On one occasion, the court stated that the 18-B Panel was having difficulty obtaining an attorney who was willing to take an A-1 felony case. On another occasion, the court noted that it was planning to involve the Administrative Judge in the effort to obtain counsel for Cortes. Finally, on July 19, 1989, Cortes appeared with an assigned attorney.

On September 14, 1989, after two additional adjournments, Cortes's attorney moved to dismiss the indictment against his client on the ground that the requirements of CPL 30.30 had not been satisfied. A similar motion had already been made by Zenon's attorney on March 30, 1989.

The trial court granted both motions, holding that, in both cases, the prosecution had far exceeded the time in which it was required to become ready. The Appellate Division affirmed the trial court's dismissal decision, although its computations and legal analysis were different in several respects (People v. Zenon, 175 A.D.2d 193, 572 N.Y.S.2d 77; People v. Cortes, 175 A.D.2d 171, 572 N.Y.S.2d 61). The Appellate Division held that the People should be charged with the 85 days between July 26, 1988 and October 19, 1988, when defendant Cortes was without counsel due to the failure of the 18-B Panel, a failure that was characterized as being "attributable to the fault of the court" (175 A.D.2d, at 194, 572 N.Y.S.2d 77, supra; 175 A.D.2d, at 172, 572 N.Y.S.2d 61, supra ). ² The Appellate Division also charged the People with the 90-day period between the October 19, 1988 dismissal of the first indictment and the January 17, 1989 filing of the second, holding that the People could not have been ready during this period and, further, that the delay between the dismissal and the re-presentment was "unreasonable." These major periods of delay, when added to the several shorter periods of pre- and postarraignment delay, brought the time chargeable to the People to well over the 183 days they had to become ready in Cortes and the 184 days they had to become ready in Zenon. ³ The People now appeal from the Appellate Division's orders, arguing that many of its assumptions about the time chargeable to the People were erroneous. We will consider each of their separate claims seriatim.

II.

In felony cases such as this one, CPL 30.30 requires the People to be ready for trial within six months of the commencement of the criminal action (CPL 30.30[1][a]. Whether the People have satisfied this obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion. Since there were extensive pre- and postreadiness delays in these defendants' prosecutions, an analysis of the causes of the delay and the availability of the statutory exclusions is crucial.

The People's first claim concerns the availability and proper application of the exclusion for periods when the defendant was without counsel "through no fault of the court" (CPL 30.30[4][f]. The People argue that the Appellate Division erred in charging them with the periods of delay when defendant Cortes was without counsel because the underlying problem--i.e., the failure of the 18-B Panel to produce an attorney for him--was not the "fault of the court." The People's argument, however, cannot be maintained in light of the close relationship between the courts and the 18-B system.

In our State, the system for assigning counsel to individuals who cannot afford to pay is derived from article 18-B of the County Law. Section 722 of that article requires counties to provide for the defense of indigents. Under section 722(3), counties may fulfill this responsibility through "a plan of a [local] bar association * * * whereby the services of private counsel are rotated and coordinated by an administrator." Compensation and reimbursement are to be fixed by the court within certain statutorily prescribed limits (County Law § 722-b).

Under the rules of the Second Department, in which these prosecutions were commenced, the Second and Eleventh Judicial Districts are required to maintain an Assigned Counsel Plan formulated by an Advisory Committee. The Committee consists of an Administrative Judge of the Supreme Court (or designee), an Administrative Judge of the Criminal Court (or designee) and several nonjudicial members selected by the Presiding Justice of the Second Department (22 NYCRR 678.3, 678.4[a]; see also, 22 NYCRR part 612 [1st Dept. rules]. This Committee is responsible for establishing not only the basic operating plan of the 18-B Panel, but also the procedures for evaluating, training and disciplining attorneys, as well as the procedures for appointing and reappointing the attorneys who will serve (22 NYCRR 678.5).

In...