People v. Jones
| Decision Date | 21 May 1992 |
| Parties | The PEOPLE of the State of New York v. Vernon JONES, Clint Sanders and Edward Mayfield, Defendants. |
| Court | New York City Court |
Charles J. Hynes, Dist. Atty., Kings County by Asst. Dist. Atty. Diana Garcia, for People.
Richard Grady, Brooklyn, for defendant Jones.
Larry Curtis, St. Albans, for defendant Sanders.
Legal Aid Soc. by John Rodriguez, Brooklyn, for defendant Mayfield.
The defendants have jointly moved once again for dismissals pursuant to CPL § 170.30(1)(e) and § 30.30. Previously successful, the defendants suffered a reversal in the Appellate Term, which ordered the reinstatement of the action. People v. Jones, 146 Misc.2d 665, 552 N.Y.S.2d 804 (1989), rev'd, 151 Misc.2d 582, 582 N.Y.S.2d 325 (App.Term, 2d Dept.1991), lv. denied, 79 N.Y.2d 921, 582 N.Y.S.2d 81, 590 N.E.2d 1209 (1992).
In the first place, the defendants naturally recognize that this court will not entertain any re-argument of what was decided by the Appellate Term, which decision gave the prosecution an additional 41 days to be ready for trial upon a proper accusatory instrument. Secondly, the defendants also acknowledge that all the delays after the original re-calendaring of the action on the Jury 7 trial calendar on January 10, 1992 were excludable, to obtain the presence of defendants and counsel, and for the defense to prepare again for trial. Moreover, no claim is made challenging the length of time consumed to prosecute the appeal, all of which would normally be excluded under CPL § 30.30(4)(a) in any event.
The only argument advanced by defendants, and the sole basis for this motion, is that the delay should be charged to the prosecution from the date of the Appellate Term's decision of reversal on November 7, 1991, 151 Misc.2d 582, 582 N.Y.S.2d 325 until the case was re-calendared in Criminal Court on January 10, 1992, citing People v. Roesch, 153 Misc.2d 668, 582 N.Y.S.2d 916 (Sup.Ct., Kings County).
An historical chronology is necessary. The Order and Judgment of the Appellate Term, with the accompanying memorandum decision and concurring opinion, is dated November 7, 1991, 151 Misc.2d 582, 582 N.Y.S.2d 325. The next step in the process is the formal remission of the case by the Appellate Term to the Criminal Court. This is accomplished by action of the Clerk of the Appellate Term, who forwards copies of the required papers to the Clerk of the Appeals Bureau of the Criminal Court, thereby officially notifying the Criminal Court of its need to act in accordance with the directions of the Appellate Term. See, CPL § 470.45. According to a signed stamp on the court papers in this case, this remission occurred on November 25, 1991.
The next step in the procedure long followed by the Criminal Court is for the Appeals Clerk, whose office is centralized in Manhattan, to prepare an Order Transmitting an Adjudication of the Appellate Term for signature by the Supervising Judge of the Criminal Court, New York County, who also sits as an Acting Supreme Court Justice. This order formally makes the Appellate Term Judgment a Judgment of the Criminal Court. A set of these orders was signed by the Supervising Judge on December 4, 1991 and thereafter transmitted to the Clerk's Office of the Criminal Court, Kings County, with directions to sign one copy and return it to the Appeals Bureau. 1
In the meantime, another appellate step was pursued by defendant Mayfield's counsel, an application for leave to appeal to the Court of Appeals, which was done by letter dated December 6, 1991. This application was ultimately denied by Judge Kaye on February 3, 1992, 2 79 N.Y.2d 921, 582 N.Y.S.2d 81, 590 N.E.2d 1209.
The aforesaid procedures set the stage for the re-calendaring of the case in the appropriate trial court part, generally the part where the case was last pending before the appeal was taken. This too is an administrative function of the various units of the Clerk's office, and was accomplished with reasonable dispatch in time to be placed on the trial calendar for January 10, 1992. As previously noted, there followed several excludable and necessary adjournments not challenged by the defense, for the purpose, inter alia, of notifying defendants and counsel. Once the case was placed back on the trial calendar, the District Attorney acted expeditiously, filed a prosecutor's information at the court's direction and answered ready for trial promptly.
There is no statute or court rule which imposes upon the prosecution the obligation to restore to the trial court's calendar a criminal action after an appellate reversal. Indeed, any such law or rule would be contrary to the constitutional provision empowering the administrative arm of the courts to control all operational aspects of the Unified Court System (N.Y. Const. Art. VI § 28; see, generally, Durante v. Evans, 94 A.D.2d 141, 464 N.Y.S.2d 264 [3rd Dept.1983] aff'd, 62 N.Y.2d 719, 476 N.Y.S.2d 828, 465 N.E.2d 367 [1984]. It follows that it is solely the obligation of the trial court itself, after the entry of the appellate order or judgment, the issuance of the appellate court's mandate and the official remission of the case, to restore the case to the trial court calendar. See, People v. Chang, 176 A.D.2d 951, 575 N.Y.S.2d 559, 560 (2d Dept.1991.) The District Attorney's office is not and should not be a part of this process and there is no factual or legal basis...
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