People v. Kendzia
| Decision Date | 12 February 1985 |
| Parties | , 476 N.E.2d 287 The PEOPLE of the State of New York, Appellant, v. Robert KENDZIA and McLeod's Prescription Pharmacy, Inc., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
After a nonjury trial, both defendants were convicted of grand larceny in the second degree (Penal Law § 155.35), offering a false instrument for filing in the first degree (Penal Law § 175.35), and violating Tax Law, article 28, § 1145(b). On appeal, the Appellate Division, 99 A.D.2d 657, 471 N.Y.S.2d 925, reversed all of the convictions and dismissed the indictment against the defendants on the ground that the People were not ready for trial within the time period mandated by CPL 30.30(1), the "speedy trial statute". The issue on this appeal is what actions the People must take to indicate "readiness" within the meaning of the statute and thus toll the running of the applicable time period.
In 1978, the State Tax Department began investigating the accuracy of quarterly sales tax returns being filed by defendant MacLeod's Prescription Pharmacy, Inc. Work done by the Department's Special Investigations Bureau eventually led to the indictment of MacLeod's and its president, defendant Robert Kendzia, for grand larceny in the second degree, offering a false instrument for filing in the first degree and violating Tax Law, article 28, § 1145(b). The indictment was filed on September 17, 1980, which became the date the criminal actions commenced for purposes of CPL 30.30.
At the defendants' arraignment on September 18, 1980, the court ordered the People to provide the defendants with copies of documents which had been subpoenaed from them by the Grand Jury. The defendants sought these documents in order to prepare pretrial motions, and therefore the court stated that the time up until the People returned the documents would not be charged to the defendants for purposes of the limitations period of the speedy trial statute. Some of the documents were turned over by the People on October 2, 1980, and the case was adjourned on that date for defendants' omnibus motion. After receiving an extension of time in which to bring the motion, defendants served their papers on December 1, 1980, with a return date of December 22, 1980. At some point after receiving the motion papers, the People spoke with the Niagara County Court Clerk about adjourning the return date and, over the objection of the defendants, the Court Clerk rescheduled the return date on the omnibus motion to January 28, 1981.
The motion was argued on January 28, 1981 and the court made oral rulings on the same day. It also appears that on that day, at an unrecorded conference in chambers, the court set a trial date of April 20, 1981, with neither side objecting. On April 14, 1981, the Assistant Attorney-General representing the People called defendants' lawyer to request an adjournment of the trial date in light of a conflict he had with another trial. Defense counsel agreed to the adjournment as long as the time was charged to the People, and the trial date was subsequently rescheduled for May 26, 1981.
In a letter sent on May 6, 1981 to defense counsel which discussed primarily compliance with court rulings as to discovery, the People stated "[W]e will be ready for trial on * * * May 26, 1981". On May 8, 1981 the defendants moved to dismiss the indictment, asserting that the People had not complied with the requirements of CPL 30.30. The motion was returnable May 20, 1981, but the People requested an adjournment and the return date was moved back to June 5, 1981. On September 8, 1981, the court denied defendants' motion to dismiss, finding that only 94 days chargeable to the People had elapsed since the filing of the indictment. The court apparently excluded the period from January 28, 1981 to April 20, 1981 based on a trial date having been set on January 28 for April 20 without objection by the People.
Following the court's decision, the Court Clerk set a new trial date for October 19, 1981. In early October, defendants chose to waive their right to a jury trial. Apparently on account of this waiver, the case was assigned to a new Judge and the trial date was adjourned into November. On November 16, 1981, defendants again moved to dismiss the indictment pursuant to CPL 30.30. On November 18, 1981, the trial began. In a decision dated March 8, 1982, the court found both defendants guilty of all of the counts of the indictment and, without discussion, denied defendants' November 16 speedy trial motion.
On appeal, the Appellate Division reversed the convictions and dismissed the indictment. In a unanimous decision, the court found that the People were not ready for trial within the meaning of CPL 30.30(1) until November 18, 1981 and that they had not demonstrated sufficient excludable time between September 17, 1980 and November 18, 1981. We agree that the People were not ready for trial within the period established by CPL 30.30(1) and thus affirm.
Because the indictment against the defendants included felony charges, the People were required to be "ready for trial" within six months of the commencement of the criminal action on September 17, 1980 (CPL 30.30[1][a] ). The People assert that they made a sufficient statement of "readiness" on January 28, 1981, when a trial date was set without their objection, or, alternatively, on May 6, 1981, when they stated in a letter that they would be ready on May 26, 1981. Defendants assert that the People never demonstrated that they were ready for trial until they answered "ready" on November 18, 1981, the first day of the trial.
In People v. Hamilton, 46 N.Y.2d 932, 415 N.Y.S.2d 208, 388 N.E.2d 345, this court held that it was insufficient for the People to assert for the first time in an affidavit submitted in opposition to a motion to dismiss, pursuant to CPL 30.30, that they had been ready to proceed at some earlier date. Rather, we stated that "the People must communicate readiness for trial to the court on the record when ready to proceed" (People v. Hamilton, supra, p. 933, 415 N.Y.S.2d 208, 388 N.E.2d 345). We again rejected a subsequent assurance of prior readiness in People v. Brothers, 50 N.Y.2d...
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Smith v. Maher
...in the third degree. The indictment was filed with the court on the same day, and the prosecution included therein a notice pursuant to People v. Kendzia1 indicating that the People were ready for trial. The prosecution filed a second Kendzia notice with the Monroe County Court and served a......
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People v. Canosa
...the People. How the People declare their readiness for trial was squarely addressed by the Court of Appeals in People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 890 (1985) The court made clear: that ready for trial' in CPL 30.30(1) encompasses two necessary elements. First, there mus......
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Brown v. New York State
...trial" within six months of the commencement of the criminal action. N.Y.Crim. Proc. Law § 30.30(1)(a); People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985). Here, the prosecutor timely announced readiness for trial at Brown's arraignment on September 25, 1997, in ......
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People v. Scaringe
...2010, but did not submit proof that they served this memorandum upon defense counsel or notified him of its filing (see People v. Kendzia,64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 [1985] ). Their brief upon appeal does not challenge defendant's contention that the later date is t......
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