People v. Hodges, 2002-11322.
| Decision Date | 15 November 2004 |
| Docket Number | 2002-11322.,2003-02275. |
| Citation | 784 N.Y.S.2d 638,2004 NY Slip Op 08237,12 A.D.3d 527 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. WILLIAM HODGES, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the appeal from the order is dismissed as the order was superseded by the amended order; and it is further,
Ordered that the amended order is reversed, on the law, upon reargument, the motion is denied, the indictment is reinstated, the order is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.
The Supreme Court, upon reargument, adhered to its original determination granting the defendant's motion to dismiss the indictment pursuant to CPL 30.30. The People appeal, contending that the Supreme Court erroneously calculated the time which must be excluded under the statute.
The defendant served a "so-ordered" subpoena on certain entities for their records concerning matters related to the charges in the indictment. The City of New York, one of the entities which was served with a subpoena, commenced a proceeding pursuant to CPLR 2304 to quash the subpoenas. When the Supreme Court denied the City's petition, the City appealed to this Court. Meanwhile, the District Attorney commenced a proceeding pursuant to CPLR article 78 in this Court to prohibit the enforcement of the orders of the Supreme Court, inter alia, denying the City's petition. This Court granted the petition of the District Attorney, reversed the order denying the City's petition to quash the subpoenas, and quashed the subpoenas (see Matter of Brown v Grosso, 285 AD2d 642 [2001]; Matter of City of New York v Hodges, 285 AD2d 645 [2001]).
We agree with the People's contention that the period during which these proceedings were litigated in this Court should have been excluded for purposes of CPL 30.30. Since the defendant initiated the process by serving the subpoenas, and, as a practical matter, the case could not be tried until the petition to quash was resolved, the time should have been excluded under CPL 30.30 (4) (a) (see People v McCray, 238 AD2d 442, 443 [1997]; People v Batts, 227 AD2d 224 [1996]). After excluding this time period, the People were chargeable with less than six months. Furthermore, even if that period was not excluded, the period of delay correctly chargeable to the People did not exceed six months. Therefore the Supreme Court, upon reargument, erroneously adhered to its original determination granting the defendant's motion to dismiss the indictment pursuant to CPL 30.30.
The People contend, and my colleagues agree, that the period from November 15, 2000, to November 20, 2001, during which the City was appealing the denial of its petition to quash the subpoenas and the prosecution was litigating the CPLR article 78 proceeding to prohibit the enforcement of the orders which, inter alia, denied the City's petition, should have been excluded as "other matter" concerning the defendant pursuant to CPL 30.30 (4) (a), and that the pendency of these proceedings was excludable as an exceptional circumstance pursuant to CPL 30.30 (4) (g). I do not agree. The proceedings regarding quashing the subpoenas had no bearing whatsoever on the People's ability to proceed to trial.
As explained in Matter of Brown v Grosso (285 AD2d 642 [2001]), the defendant attempted to obtain unauthorized discovery of, inter alia, files in the possession of the police and the Civilian Complaint Review Board concerning his arrest, to bolster his claim that the police officer who was the victim of the alleged attempted first degree murder accidentally shot himself. This Court ultimately determined that the defendant had no right to discovery of these files (see Matter of Brown v Grosso, supra; Matter of City of New York v Hodges, 285 AD2d 645 [2001]). However, the fact that the defendant was improperly seeking extra-statutory discovery did not impede the People's ability to proceed to trial.
The pretrial proceedings continued, albeit at a very slow pace, while the matter of the propriety of the subpoenas was litigated. The defendant obtained his subpoenas in August 2000 and this Court quashed them in July 2001 (see Matter of Brown v Grosso, supra; Matter of City of New York v Hodges, supra). In the interim, discovery proceeded, the defendant's suppression hearing commenced, and in March 2002, the defendant's suppression motion was denied. At no time during those proceedings did either party contend that the ongoing civil proceedings slowed the progress of the criminal prosecution, nor was the prosecution delayed by the civil proceedings.
The People analogized the related civil proceedings to an appeal, the time for which would have been excludable pursuant to CPL 30.30 (4) (a). However, the proceedings to quash in this case were not analogous to an appeal. The People's right to appeal is narrowly circumscribed pursuant to CPL 450.20. Insofar as is relevant to speedy trial issues, the People may only appeal when an indictment has been dismissed (see CPL 450.20 [1], [1-a], [2], [8]) since the People would then be unable to proceed with a prosecution and trial (see People v Bryant, 153 AD2d 636, 639-640 [1989]). Thus, the Legislature has determined that the time necessary for the People to obtain a reversal on appeal, so that the prosecution may resume, cannot be charged to the People. That is not the case here.
Similarly, the People argue that this case is indistinguishable from People v McCray (238 AD2d 442 [1997]), where the delay resulting from a motion to quash improper subpoenas was excluded. In McCray, this Court held that "as a practical matter, the case could not have been tried until resolution of the motion to quash, and thus the `motion time' exclusion of CPL 30.30 (4) (a) applies" (id. at 443). Here, not only could the instant action have proceeded during the pendency of the CPLR article 78 proceeding and the City's appeal, it actually did go forward. Unlike the situation in McCray, the instant case was not delayed by the proceedings to quash. Thus, the issue of which party should have been charged with this delay is illusory since there was no delay attributable to those proceedings. Nevertheless, I agree that the Supreme Court erred in granting the defendant's CPL 30.30 motion, as the Supreme Court erroneously charged the prosecution with several periods of excludable time.
Pursuant to CPL 30.30 (1) (a), in this felony prosecution, the People were required to be ready for trial within six months after commencement of the action (see People v Goss, 87 NY2d 792, 796 [1996]). As the six-month period in which the People have to become ready in felony cases is measured by the actual number of days in the applicable calendar months (see People v Cortes, 80 NY2d 201, 207 [1992]), the six-month period here consisted of 182 days. While the People announced their readiness to proceed well within the requisite time period, the salient issue is whether the Supreme Court properly charged the People with several periods of post-readiness delay totaling 226 days, 44 days more than the 182-day limit. I conclude that the Supreme Court erred in charging 48 of the 226 days it charged to the prosecution, which would bring the People within the six-month period applicable here.
At the outset, the defendant conceded that the Supreme Court erroneously charged the People with 18 days of excludable delay for the period from July 2, 2001, to July 23, 2001, attributable to court unavailability (see People v Washington, 238 AD2d 263 [1997]). Thus, the 226 days charged to the People should have been reduced accordingly to 208 days.
The Supreme Court also erroneously charged the People with 10 days for an adjournment for the period from May 8, 2001, to May 21, 2001. On Tuesday, May 8, 2001, the prosecuting Assistant District Attorney asked for an adjournment until "next week." The Supreme Court indicated that it was unavailable for the first two days of the next week, and the defense attorney indicated that he was unavailable for the remaining three days of that week. The Supreme Court thereafter indicated that the next available date was May 21, 2001, and adjourned the case to that date.
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