People v. Jaquez

• Decision Date: 14 April 2021
• Docket Number: 3844/2018
• Parties: The PEOPLE of the State of New York v. Fran Sanchez JAQUEZ, Defendant.
• Court: New York Supreme Court

71 Misc.3d 1110
146 N.Y.S.3d 742

The PEOPLE of the State of New York
v.
Fran Sanchez JAQUEZ, Defendant.

3844/2018

Supreme Court, New York County, New York.

Decided on April 14, 2021

146 N.Y.S.3d 745

For the Defendant: Janet E. Sabel, Esq., The Legal Aid Society (Arthur J. Mendola and Mitchell E. Schwartz of counsel)

For the People: Cyrus R. Vance, Jr., District Attorney, New York County (Elizabeth D'Antonio of counsel)

Robert M. Mandelbaum, J.

71 Misc.3d 1111

Effective January 1, 2020, the Legislature enacted substantial changes to the criminal discovery laws (see L 2019, ch 59, § 1, part LLL, § 2), converting New York from a jurisdiction where trial-by-ambush had been the norm to an "open-file" discovery state. In order to incentivize compliance, the Legislature additionally amended the statutory speedy trial law to provide that the People could not validly answer ready for trial without first fulfilling their discovery obligations (see

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CPL 30.30 [5] ; see also CPL 245.50 [3] [prosecution "shall not be deemed ready for trial" until it has filed a proper certificate of compliance with discovery]). The novel question presented by this speedy trial motion involves the effect of these reforms on a declaration of readiness announced prior to the statutory amendments.

Charged with attempted assault in the first degree (see Penal Law § 110/120.10 [1]) and assault in the second degree (see Penal Law § 120.05 [2] ), defendant moves to dismiss on the ground that his statutory right to a speedy trial has been violated. When a defendant is accused of one or more offenses, at least one of which is a felony, the People must be ready for trial within six months of the commencement of the criminal action (see CPL 30.30 [1] [a] ), minus any excludable periods (see CPL 30.30 [4] ; People v. Cortes , 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ).¹ Here, where the criminal action commenced on October 24, 2018, the applicable six-month period is 182 days.

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As the People concede, the 35-day period from defendant's October 24, 2018, arraignment on the felony complaint until his November 28 arraignment on the indictment is chargeable to the People (see People v. Correa , 77 N.Y.2d 930, 569 N.Y.S.2d 601, 572 N.E.2d 42 [1991] ).

On November 28, 2018, a motion schedule was set and the case was adjourned to January 30, 2019, for the court's decision. By omnibus motion papers (see CPL 255.20 [2] ), defendant moved, among other things, for suppression of physical evidence and statements and to controvert the search warrant. This adjournment for pretrial motions is excludable (see CPL 30.30 [4] [a] ).

Following receipt of the People's response, the court was able to decide the bulk of defendant's motions as scheduled on January 30, but was unable to decide the motion to controvert the search warrant because the People had neglected to address it in their response papers. Accordingly, in addition to ordering that evidentiary hearings be held on defendant's motions to suppress (see Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 [1961] ; People v. Huntley , 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965] ; Dunaway v. New York , 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 [1979] ) -- normally resulting in an excludable adjournment since the exclusion for pretrial motions includes "the period during which such matters are under consideration by the court" ( CPL 30.30 [4] [a] ; see also People v. Sinisgalli , 24 Misc. 3d 135(A), 2009 N.Y. Slip Op. 51489(U), 2009 WL 2032893 [App. Term, 1st Dept. 2009] ; People v. Taylor , 16 Misc. 3d 339, 836 N.Y.S.2d 399 [Crim. Ct., N.Y. County 2007] ) -- the motion court directed that the People would be charged for purposes of CPL 30.30 until they filed with the court and served on defense counsel their response to defendant's outstanding motion to controvert (see People v. Delosanto , 307 A.D.2d 298, 763 N.Y.S.2d 629 [2d Dept. 2003] [People charged with additional adjournment necessitated by People's failure

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to timely file response to defense motions]; see also CPL 710.40 [3] [when a suppression motion is made before trial, the trial may not be commenced until determination of the motion]). The case was adjourned to March 20, 2019, for hearings and trial. On February 7, the People filed their response off-calendar, along with a statement certifying their readiness for trial. As the People concede, the eight-day period from January 30 to February 7 is chargeable to the People.

On March 20, the People were not ready for hearings and trial and the motion to controvert the search warrant was denied. The case was adjourned to May 29, again for hearings and trial. On April 2, 2019, the People filed and served another

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certificate of readiness.² Accordingly, only the 13 days from March 20 to April 2 are chargeable to the People (see People v. Brown , 28 N.Y.3d 392, 404, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ; People v. Stirrup , 91 N.Y.2d 434, 440, 671 N.Y.S.2d 433, 694 N.E.2d 434 [1998] ).

On May 29, the People answered ready for hearings and trial but new defense counsel appeared and requested an adjournment. The case was adjourned to July 11. This adjournment is excludable (see CPL 30.30 [4] [b] ; People v. Kopciowski , 68 N.Y.2d 615, 617, 505 N.Y.S.2d 52, 496 N.E.2d 211 [1986] ).

On July 11, the People were ready but defense counsel was actually engaged in another matter and again requested an adjournment. The case was adjourned to August 2. This adjournment is excludable (see CPL 30.30 [4] [b] ; Kopciowski , 68 N.Y.2d at 617, 505 N.Y.S.2d 52, 496 N.E.2d 211 ).

As defendant concedes, the adjournments from August 2 to September 17, and from September 17 to October 29, are excludable, since defense counsel consented to these adjournments in an effort to reach a possible disposition (see CPL 30.30 [4] [b] ; People v. Liotta , 79 N.Y.2d 841, 843, 580 N.Y.S.2d 184, 588 N.E.2d 82 [1992] ).

On October 29, 2019, the People answered ready for hearings and trial but the case was adjourned to November 20, at defense counsel's request, for a new attorney to appear and as a "control" date on which to then set a trial date. (Accordingly, the parties were not directed or expected to be ready to proceed to trial on November 20.) This adjournment is excludable (see CPL 30.30 [4] [b], [f] ; Kopciowski , 68 N.Y.2d at 617, 505 N.Y.S.2d 52, 496 N.E.2d 211 ).

On November 20, new defense counsel appeared and the case was adjourned, at defense counsel's request, to January 21, 2020.³ Defendant concedes

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that at least the portion of this adjournment from November 20 to January 1 is excludable (see CPL 30.30 [4] [b] ; Kopciowski , 68 N.Y.2d at 617, 505 N.Y.S.2d 52, 496 N.E.2d 211 ), but argues

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that the period from January 1 to January 21 should be charged.

Defendant contends that when CPL 30.30 (5) came into effect on January 1, the otherwise-tolled speedy trial clock immediately began to run, irrespective of what had occurred before. But although certain amendments were made to CPL 30.30 as of that date -- including the enactment of CPL 30.30 (5), providing that a valid statement of readiness cannot be made until automatic discovery required by CPL 245.20 has been completed -- most of section 30.30 was left unchanged. Most significantly, the various exclusions set forth in CPL 30.30 (4) remained in effect. Further, since the changes to the speedy trial law were made effective only as of the date of implementation (see L 2019, ch 59, § 1, part KKK, § 2 [establishing effective date of Jan. 1, 2020]), the legislative amendments had no impact on the calculation of speedy-trial time for periods prior to January 1, 2020 (cf. People v. Duggins , 192 A.D.3d 191, 140 N.Y.S.3d 317 [3d Dept. 2021] [ CPL 30.30 (6) not retroactive]). Thus, statements of readiness validly made under the old law did not become retroactively vitiated or illusory, even though the requirements of CPL 245.20 had not then been complied with and, indeed, did not yet exist (see People v. Percell , 67 Misc. 3d 190, 194, 119 N.Y.S.3d 731 [Crim. Ct., N.Y. County 2020] ).

Accordingly, any excludable adjournment granted before the 2020 reforms remains excludable. Here, the adjournment ordered on November 20 was an excludable one, made at the request of defense counsel. Since the period of delay resulting from counsel's request -- as scheduled at the time it was granted -- ran until January 21, that is the excludable period (see CPL 30.30 [4] [b] [period of delay "resulting from" a continuance granted by the court at the request of defense counsel "must be excluded"]; People v. Cada , 69 Misc. 3d 882, 886, 133 N.Y.S.3d 425 [Crim. Ct., Queens County 2020] ["the (last 2019) adjournment was validly excludable and remained so throughout the entire adjournment period"]). Had the case been adjourned for pretrial motions from...