People v. Formicola, 2022-22010

CourtNew York Justice Court
Writing for the CourtThomas J. DiSalvo, J.
Decision Date13 January 2022
PartiesThe People of the State of New York v. Jason M. Formicola, Defendant.
Docket Number2022-22010,20020226

The People of the State of New York
v.

Jason M. Formicola, Defendant.

No. 2022-22010

No. 20020226

Justice Court of the Town of Webster, Monroe County

January 13, 2022


Sandra Doorley, District Attorney Monroe County (Jacqujeline Moyer, of Counsel), for Plaintiff.

Jill Paperno, Acting Monroe County Public Defender (Tracey Sullivan, of Counsel), for Defendant.

Thomas J. DiSalvo, J.

History of the Case.

The defendant was charged with operating a motor vehicle impaired by drugs, VTL § 1192 (4), criminal possession of controlled substance, 7th degree, P.L. § 120.03, unsafe lane change, VTL § 1128(a) and driving on the shoulder VTL § 1131 on February 18, 2020. The original return date was March 4, 2020. The arraignment did not take place on that date, because the defendant failed to appear. A Criminal Summons was issued for March 18, 2020. However, the court was shut down due to the Covid-19 pandemic from March 17, 2020 through July 27, 2020, i.e. 136 days. The court was forced to adjourn pending cases to future dates. The case was adjourned to August 5, 2020. However, the defendant failed to appear on that date. This case was adjourned to September 2, 2020 at which time the defendant was arraigned. The case was then adjourned to October 21, 2020 for further disposition. It was further adjourned to December 6, 2020. All of these adjournments were at the request of the defendant. The court was again shut down because of the pandemic from December 9, 2020 through March 1, 2021, i.e. 81 days. Again after the pandemic forced court shut down the court began to re-schedule its outstanding cases. This matter was adjourned to April 21, 2021. The defendant failed to appear, so the court issued a criminal summons for June 2, 2021. At which time the case was adjourned at the request of the defendant to conduct probable cause and Huntley hearings as requested by defense counsel's omnibus motions. Those hearings were scheduled for July 16, 2021, but said hearings were rescheduled to July 30, 2021, again presumably at the request of the defendant. However, the hearings did not take place on that date, because the trooper was out of town. The court adjourned the case to September 10, 2021, over the objection of defense counsel. The hearings were again adjourned this time at the request of defense counsel to September 21, 2021. Upon the conclusion of the hearings on that date the court denied defense counsel's motion to suppress both the stop of the defendant's vehicle and any statements made by the defendant. It was at that time that the case was adjourned to for a jury trial. It is un-controverted that the People filed a Certificate of Compliance [C of C] on September 28, 2020. It is further beyond dispute that the People filed a Supplemental C of C on November 13, 2020, September 27, 2021 and January 6, 2022.

The defendant has filed motions with the court requesting that the case be dismissed, essentially on the eve of trial, on two grounds. First the defense alleges that the original C of C and Supplemental Certificates of Compliance are invalid. Second, the defense alleges that the People were not ready for trial, within the statutory time frame required by CPL 30.30(1)(b), i.e. 90 days. The People have submitted a cross-motion and responding affirmation. Finally the defense has submitted a Reply Affirmation.

Legal Anlayis.

Speedy Trial. The court will first address the issue of readiness for trial within the context of CPL § 30.30(1)(b). In breaking down the various periods between adjournments and court appearances the court does not charge any of the time from the commencement of the action on February 18, 2020 through the date of Arraignment on September 2, 2020.The time between those two dates were either at the request of the defendant, (CPL § 30.30[4][b]);or due to "exceptional circumstances" (CPL § 30.30[4][g]), namely the pandemic, which would include the rescheduling of cases at the end of the Covid-19 pandemic shut down. None of the time from the date of the arraignment on September 2, 2020 through July 30, 2021 can be charged to the People. Adjournments during that time frame were at the request of the defense (CPL § 30.30[4][b]); "exceptional circumstances" (CPL § 30.30[4][g]), namely, the second pandemic court shut down and the failure of the defendant to appear after having been released on his own recognizance (CPL § 30.30[4][c][ii]). At most the time from July 30, 2021 through September 10, 2021, i.e. 42 days, when the probable cause and Huntley hearings were adjourned due to the unavailability of the police officer through the date of the hearings, could arguably be charged to the People. However most of time during that period was due to the unavailability of open dates in the court's schedule. (See People v. Gates, 70 A.D.2d 734 [3rd Dept 1979])....

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