People v. Kheir

• Citation: 74 Misc.3d 712,162 N.Y.S.3d 897
• Decision Date: 02 February 2022
• Docket Number: Docket No. 20100156
• Parties: The PEOPLE of the State of New York v. Ahmed KHEIR, Defendant.
• Court: New York County Court

74 Misc.3d 712

162 N.Y.S.3d 897

The PEOPLE of the State of New York

v.Ahmed KHEIR, Defendant.

Docket No. 20100156

Justice Court, New York, Town of Greenburgh, Westchester County.

Decided on February 2, 2022

The People were represented by ADA Courtney Johnson, Esq. on behalf of Miriam Rocah, Westchester County District Attorney.

Defendant was represented by Michael Borrelli, Esq.

Bonnie L. Orden, J. Defendant moves to dismiss the misdemeanor information pursuant to NY Criminal Procedure Law (CPL) § 170.30 (1) (e), alleging that his right to a speedy trial was violated (see CPL § 30.30 [1] [b] ). Defendant claims, in pertinent part, that the People's December 11, 2020, certificate of compliance (COC) was not proper, and the People's statement of readiness was therefore illusory because evidence subject to mandatory discovery, to wit, a tape-recording of a conversation between the investigating detective and the complainant, was belatedly disclosed on October 27, 2021 (see CPL § 245.20 [1] [e] ). Defendant argues that the People did not exercise due diligence before filing the December 11, 2020, COC. The People oppose, averring that the COC was proper and filed in good faith, after exercising due diligence and making reasonable inquiries to ascertain the existence of all known materials required to be turned over (see CPL § 245.50 [1] ). The Court must determine whether the December 11, 2020, COC is proper, and if it is, whether a remedy is appropriate pursuant to CPL § 245.80. If the original COC was invalid, dismissal of the accusatory instrument is warranted ( CPL 30.30 [1] [b] ).

Background

Defendant is charged with the "A" misdemeanor of forcible touching (Penal Law (PL) § 130.52 [1] ) and the "B" misdemeanor of sexual abuse in the third degree (PL § 130.55). Defendant was arraigned on October 6, 2020, at which time he entered a plea of not guilty and the matter was adjourned at the People's request to October 16, 2020. On October 16, 2020, defendant was virtually present before this Court and the People requested an adjournment to October 30, 2020, with defendant requesting a further adjournment to November 6, 2020, due to defense counsel's unavailability. On November 6, 2020, defendant was virtually present before this Court and was arraigned on a superseding misdemeanor information. The People requested an adjournment to November 20, 2020, with defendant requesting a further adjournment to December 11, 2020, due to defense counsel's unavailability. On December 11, 2020, defendant was virtually present before this Court and the People filed a certificate of compliance and statement of trial readiness. After making the requisite inquiry and affording the defense an opportunity to be heard, the Court deemed the People ready for trial without any defense objections (see CPL § 30.30 [5] ). Defendant requested an adjournment to January 29, 2021, for investigation.

On January 29, 2021, defendant requested a jury trial. All parties were aware that no jury trials were yet taking place in any Town or Village Court in the 9th Judicial District due to the COVID-19 pandemic. As such, the case was adjourned to April 23, 2021, as the court awaited approval by the 9th Judicial District Administrative Judge to recommence jury trials. Thereafter, the case was adjourned multiple times for jury trial approval. Finally, on September 10, 2021, upon receipt of approval for this court to proceed with jury trials, the matter was adjourned with the defendant's express consent to November 15, 2021, for trial.

Defendant and the People agree that on October 27, 2021, the People provided defense counsel with additional discovery material, specifically a tape-recorded phone call between Detective Albano and the complaining witness. Defense counsel states that a portion of this recorded call is corrupted; the People are silent on this fact. At defendant's request, the case was advanced to November 3, 2021, at which time defense counsel requested a motion schedule related to the instant motion to dismiss. On November 12, 2021, the People filed a supplemental COC. On November 17, 2021, defendant filed the instant motion, with the People filing an affirmation in opposition and memorandum of law on December 15, 2021, and defendant filing an affirmation in reply on December 29, 2021.

Legal Analysis

When a defendant is charged with a misdemeanor punishable by more than three months imprisonment, as defendant is in this case, the People have 90 days from the commencement of the criminal action to declare their readiness for trial ( CPL § 30.30 [1] [b] ; PL § 70.15 [1]). "A criminal action is commenced by the filing of an accusatory instrument against a defendant in a criminal court" ( CPL § 1.20 [17] ). If the People fail to declare readiness within 90 days, then upon motion of defendant the matter must be dismissed, unless the People demonstrate that certain time periods are excludable from the speedy trial calculation (see People v. Berkowitz , 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ; see also People v. Brown , 28 N.Y.3d 392, 45 N.Y.S.3d 320, 68 N.E.3d 45 [2016] ). Adjournments at the defendant's request are excludable, as are periods of delay granted by the court with the consent of the defendant or his/her counsel, and adjournments relating to pretrial motions ( CPL §§ 30.30 [4] [a], [b] ).

To be ready for trial, the People must file a "certification of good faith compliance" consistent with the discovery requirements of CPL § 245.20, the People must state its readiness on the record, and the Court must conduct an "inquiry on the record as to [its] actual readiness" ( CPL § 30.30 [5] ). The COC must state that "after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" ( CPL § 245.50 [1] ). Notably, "the prosecution shall not be deemed ready for trial ... until it has filed a proper [COC]" ( CPL § 245.50 [3] ). If the prosecutor subsequently provides defendant with additional discovery material, the prosecutor must file a supplemental COC ( CPL § 245.50 [1] ).

Here, 66 days passed from arraignment to the People filing the original COC and declaring readiness on December 11, 2020. Of those 66 days, 39 days are chargeable to the People, as defendant expressly requested adjournments totaling 27 days due to counsel's unavailability on the dates requested by the People, which reasons defense counsel placed on the record (see People v. Brown, 73 Misc. 3d 131[A], 2021 N.Y. Slip Op. 50965[U], 2021 WL 4768546 [App. Term 2021] ; People ex rel. Labrew v. Vance , 192 A.D.3d 645, 141 N.Y.S.3d 308 [1st Dept. 2021] ["[R]egardless of whether the People declared their readiness, the adjournments ... were excludable based on defense counsel's consent...."]).¹

Post-readiness delays are treated differently in some respects. Post-readiness delays due to "calendar congestion and lack of court facilities" are excluded from the CPL § 30.30 calculation ( People ex rel. Franklin v. Warden, Brooklyn House of Detention for Men , 31 N.Y.2d 498, 501, 341 N.Y.S.2d 604, 294 N.E.2d 199 [1973] ). After the People announced readiness on December 11, 2020, defendant requested an adjournment to January 29, 2021, for investigation.² This period is excluded regardless of the People's readiness as an adjournment on consent ( Matter of People ex rel. Labrew v. Vance , 192 A.D.3d at 645, 141 N.Y.S.3d 308 ). On January 29, 2021, defendant requested a jury trial. At that time, all Town and Village Courts in the 9th Judicial District required individual approval by the Administrative Judge before holding a jury trial. To receive approval, the Court had to demonstrate that it had the facilities necessary to ensure the safety of all participants and the jurors considering the ongoing COVID-19 pandemic. On September 10, 2021, the Administrative Judge approved jury trials in the Greenburgh Town Court, and the parties were notified. A November 15, 2021 trial date was set with the consent of the parties.³

Since the adjournments from January 29, 2021 to November 3, 2021, (when defendant requested a motion schedule and stopped the speedy trial clock) were attributable to lack of court facilities to hold a trial, they must be excluded from the CPL § 30.30 calculation if the People were in a post-readiness posture. Therefore, defendant's motion to dismiss hinges on the validity of the December 11, 2020, COC. If the COC was not proper, then the People were in a pre-readiness posture, and the entire adjournment period of 278 days from January 29, 2021 to November 3, 2021, is chargeable. When added to the chargeable delays before December 11, 2020, that would bring the total days charged to the People to 307 days — well beyond the 90 days permitted by statute and dismissal must be granted.

"[N]umerous courts have found that belated disclosures should not invalidate a certificate of compliance that was made in good faith after the exercise of due diligence" ( People v. Rodriguez , 73 Misc. 3d 411, 152 N.Y.S.3d 879 [2021], citing People v. Bruni , 71 Misc. 3d 913, 144 N.Y.S.3d 544 [Albany County Ct. 2021] ; People v. Erby , 68 Misc. 3d 625, 633, 128 N.Y.S.3d 418 [Sup. Ct., Bronx County 2020] ; People v. Gonzalez , 68 Misc. 3d 1213[A], 2020 N.Y. Slip Op. 50924[U], 2020 WL 4873901 [Sup. Ct., Kings County 2020] ; People v. Knight , 69 Misc. 3d 546, 552, 130 N.Y.S.3d 919 [Sup. Ct., Kings County 2020] ; People v. Lustig , 68 Misc. 3d 234, 247, 123 N.Y.S.3d 469 [Sup. Ct., Queens County 2020] ; People v. Randolph , 69 Misc. 3d 770, 770, 132 N.Y.S.3d 726 [Sup. Ct., Suffolk County 2020] ; People v. Davis , 70 Misc. 3d 467, 474-480, 134 N.Y.S.3d 620 [Crim. Ct., Bronx County 2020] ). Moreover, the discovery statute "should not be construed as an inescapable trap for the diligent prosecutor" ( Erby , 68...