People v. Erby

• Decision Date: 17 May 2020
• Docket Number: Ind. No. 2361/2018
• Parties: The PEOPLE of the State of New York v. Camrod ERBY, Defendant.
• Court: New York Supreme Court

68 Misc.3d 625

128 N.Y.S.3d 418

The PEOPLE of the State of New York

v.Camrod ERBY, Defendant.

Ind. No. 2361/2018

Supreme Court, Bronx County, New York.

Decided on May 17, 2020

The Bronx Defenders (Angelo Petrigh of counsel) for defendant.

Darcel D. Clark, District Attorney (Michael Duffy of counsel), for plaintiff.

Steven Hornstein, J.

The defendant has been charged by indictment with Attempted Murder in the Second Degree (Penal Law [PL] § 110/125.25 [1] ), Criminal Possession of a Weapon in the Second Degree (PL § 265.03 (1) (b) and related charges stemming from an incident in which the defendant, on October 28, 2018, at 4:00 a.m., in the vicinity of 215th Street & Hicks Street, Bronx County, allegedly fired a shot into the abdomen of Stefan Collins. By oral application on February 18, 2020 (see CPL § 30.30 [8] ), the defendant sought release from custody pursuant to CPL § 30.30 (2) (a), alleging that one-hundred-two (102) days were chargeable to the People. The People opposed the application and, on February 20, 2020, this Court conducted a hearing on the defendant's application (see CPL § 30.30 [8] ).

The Court, having considered the court file and the parties' contentions and extensive submissions, finds as follows:

To establish a violation under CPL § 30.30 (2) a defendant must demonstrate the existence of a delay in excess of the statutory time period ( People v. Santos , 68 N.Y.2d 859, 861, 508 N.Y.S.2d 411, 501 N.E.2d 19 [1986] ). Upon meeting this burden, the burden shifts to the People to establish that certain periods within that time period should be excluded (see People v. Fields , 214 A.D.2d 332, 625 N.Y.S.2d 483 [1st Dept. 1995] ). The People also bear the burden of clarifying, on the record, the basis for an adjournment so that a motion court can determine to whom an adjournment should be charged ( 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. Liotta , 79 N.Y.2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82 [1992] ; People v. Berkowitz , 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ).

Criminal Procedure Law CPL § 30.30 (2) (a) provides:

Except as provided in subdivision three, where a defendant has been committed to the custody of the sheriff in a criminal action he must be released on bail or on his own recognizance, upon such conditions as may be just and reasonable, if the people are not ready for trial in that criminal action within: (a) ninety days from the commencement of his commitment to custody of the sheriff in a criminal action wherein the defendant is accused of one or more offenses, at least one of which is a felony.

The parties agree that seventy-two (72) days are chargeable to the People during the period from the defendant's arrest up until January 13, 2020. As framed by the defendant in his February 28, 2020 letter to the Court, the parties agree that "[t]he dispute [is] whether the time from January 13, 2020 to February 18, 2020 [is] chargeable."

The defendant has been committed to the custody of the sheriff since his arrest on October 28, 2018. Accordingly, release is required under CPL 30.30 (2) unless the period in contention is excludable under CPL § 30.30 (4).

CPL § 30.30 (4) provides, in pertinent part:

In computing the time within which the people must be ready for trial...the following periods must (emphasis added) be excluded:

(a) the period of delay resulting from other proceedings concerning the defendant, including but not limited to:...pre-trial motions...and the period during which such matters are under consideration by the court; or

(g) other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people's case and additional time is justified by the exceptional circumstances of the case.

Defendant, in his February 28th written submission, writes:

The prosecution has been unable to state ready for trial since January 1, 2020 because they have failed to comply with CPL 245.50. As such, they have reverted to a pre-readiness posture, where they are unable to be trial ready until they comply. Any prior statements of readiness were rendered invalid on January 1, 2020.

In support of this position, defendant points to the legislative history of Article 245 and specifically points to the Sponsor's statement which provided:

Kalief's Law will ensure that a statement of "readiness" is real by tying it to discovery requirements requiring the People to possess evidence that they are in fact "ready" for trial while allowing for flexibility when the facts merit additional time.

Defendant further stated:

A statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have written it if the Legislature had envisaged all of the problems and complications which might arise in the course of its administration, no matter what disastrous consequences may result from following the express intent of the Legislature the Judiciary cannot avoid its duty (citations omitted).

While the Legislature might not have "envisaged all of the problems and complications" that enactment of Article 245 would foment, this Court finds it difficult to conclude that legislators would be unconcerned with "disastrous consequences" wrought by legislation that was designed to rectify a problem, not create one. Illustrative of this point is an inquiry raised in this matter during oral argument. The Court, drawing upon a recent discussion with another prosecutor concerning his efforts to comply with the new discovery law on another case involving a significant violent felony offense, asked the defense to assume that the prosecution had provided more than 50,000 documents, hundreds of recorded conversations and dozens of body-cam videos but were unable to secure one page of one tangentially involved officer's memo book; under those circumstances, would the defense position be that the prosecution, even while specifying their past and ongoing efforts to secure that one page and committing, subject to sanction, to immediate disclosure of that one page when obtained, would be unable to announce ready? The defense, in response, unequivocally stated that not only would that be their position but that was what the law required.

The prosecution, recognizing the implications of the defense position, though primarily in the context of the continuing applicability of the CPL 30.30 exclusions prior to the filing of a certificate of compliance, writes, in part:

...defendant's motion brings about powerful policy considerations. If defendant is correct and a certificate of readiness is an inflexible prerequisite in order for the CPL 30.30 (4) time periods to be excluded, the rule will result in the dismissal of countless cases. The People's arguments above are likely adopted by District Attorney's Offices throughout the State...it is also likely that certificates of compliance are not filed while motions are pending or while other prosecutors reasonably relied upon traditional excludability under CPL 30.30.

Amplifying these concerns is that certificates are more difficult to file in serious cases with significant police involvement in discovery obligations. Defendant's arguments, if accepted, could result in the dismissal of a number of serious felony cases, including violent felonies. Indeed, one need only consider the attempted murder case at hand to recognize the vast impact of this interpretation.

Although resolution of defendant's motion does not require assessment of the "powerful policy considerations" noted by the prosecution, given the import of the issues raised, this Court has reviewed both the statutory language and the legislative history of Article 245 in an attempt to ascertain legislative intent. In this endeavor, the Court has applied the oft-quote analytical framework provided by the Court of Appeals. As stated in People v. Andujar , 30 N.Y.3d 160, 166, 66 N.Y.S.3d 151, 88 N.E.3d 309 (2017) :

When presented with a question of statutory interpretation, our primary consideration ‘is to ascertain and give effect to the intention of the Legislature’ (citations omitted). While ‘the words of the statute are the best evidence of the Legislature's intent,’ legislative history may also be relevant as an aid to construction of the meaning of words (citation omitted).

The defendant correctly notes that CPL § 245.50 (3) requires the prosecution, "absent an individualized finding of special circumstances," to file a proper certificate of compliance before they may "be deemed ready" for trial. The defendant, however, mistakenly reads CPL § 245.50 (1) for the uncompromising proposition that absent full compliance with the Article's automatic disclosure requirements, the prosecution may neither file a certificate of compliance nor rely upon Article 30.30 (4) exclusions. CPL § 245.50 (1) provides, in pertinent part:

When the prosecution has provided the discovery required by subdivision one of section 245.20....it shall serve upon the defendant and file with the court a certificate of compliance. The certificate...shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery...If additional discovery is subsequently provided prior to trial...a supplemental certificate shall be served upon the defendant and filed with the

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