People v. Lewis
| Decision Date | 24 October 2019 |
| Docket Number | CR-051190-18KN |
| Citation | 65 Misc.3d 1044,112 N.Y.S.3d 442 |
| Parties | The PEOPLE of the State of New York v. Robert LEWIS, Defendant. |
| Court | New York Criminal Court |
The Legal Aid Society (Alaina Dartt and Julie Schaul of counsel) for defendant.
Eric Gonzalez, District Attorney (Michael Perez of counsel), for plaintiff.
The defendant, charged with Assault in the Third Degree (P.L. § 120.00(1)); Criminal Obstruction of Breathing or Blood Circulation (P.L. § 121.11(A)); Attempted Assault in the Third Degree (P.L. §§ 110.00/120.00(1)); Menacing in the Third Degree (P.L. § 120.15); and Harassment in the Second Degree (P.L. § 240.26(1)); moves for an order dismissing the information pursuant to C.P.L. §§ 30.30(1)(b) and 30.20(1).
After a careful review of the defendant's motion, the People's response,1 the defendant's reply, and the transcripts of relevant calendar calls, the motion to dismiss pursuant to C.P.L. §§ 30.20, 30.30 is denied.
On November 27, 2018, the defendant was arraigned on a misdemeanor complaint on which the highest charges were the two Class A misdemeanors set forth above. Thus, the People had 90 days to be ready to proceed to trial. The defendant was released on his own recognizance and the matter was adjourned to January 28, 2019, for conversion.
Accordingly, the People are charged with 62 days of this adjournment.
62 chargeable days.
On January 28, 2019, the People did not have a supporting deposition and the case was adjourned again for conversion to March 5, 2019. On February 15, 2019, the People served and filed a Statement of Readiness along with a superseding information and a supporting deposition signed by Shahmyre Haile.
Accordingly, the People are charged with 18 days of this adjournment.
18 chargeable days.
On March 5, 2019, the case was adjourned for Discovery by Stipulation. Because adjournments for discovery are designated in the statute as "other proceedings concerning the defendant," this time period is excludable from the 30.30 calculation. See C.P.L. § 30.30(4)(a).
0 chargeable days.
On April 8, 2019, the People were without discovery and directed to provide it to the defendant off-calendar by April 19, 2019. The case was adjourned for hearings and trial to May 13, 2019. This adjournment is excludable pursuant to People v. Greene , 223 A.D.2d 474, 637 N.Y.S.2d 79 (1st Dept.), appeal denied 88 N.Y.2d 879, 645 N.Y.S.2d 453, 668 N.E.2d 424 (1996) ; People v. Hernandez , 268 A.D.2d 344, 702 N.Y.S.2d 247 (1st Dept.), lv denied 95 N.Y.2d 853, 714 N.Y.S.2d 4, 736 N.E.2d 865 (2000) ; People v. Lucas , 25 Misc.3d 1213(A), 901 N.Y.S.2d 909 (Crim. Ct., Kings County 2009).
0 chargeable days.
On May 13, 2019, the People were not ready for trial because the arresting officer was not available and requested 1 day.
The case was adjourned to June 17, 2019 for hearings and trial. Because the People had previously announced their readiness to proceed, they are not charged for the time period of the adjournment in excess of the time they requested. People v. Nielsen , 306 A.D.2d 500, 761 N.Y.S.2d 316 (2d Dept. 2003) ; People v. Williams , 229 A.D.2d 603, 646 N.Y.S.2d 142 (2d Dept. 1996).
1 chargeable day.
On June 17, 2019, the People announced ready for trial and stated that the arresting officer was present. Defense counsel was not available, and the case was adjourned to July 15, 2019 for hearings and trial. This constitutes an excludable adjournment because it was granted at the defendant's request. People v. Worley , 66 N.Y.2d 523, 498 N.Y.S.2d 116, 488 N.E.2d 1228 (1985).
0 chargeable days.
On July 15, 2019, the People were not ready because the arresting officer was not available and requested one day. The case was adjourned for hearings and trial to August 12, 2019.
1 chargeable day.
On August 12, 2019, the People were not ready and requested three days. The People conceded 82 days of chargeable time. The Court noted that there was no defense counsel present when the case was called at 10:40 A.M. Uninformed as to whether defense counsel would be coming to court, Judge Darkeh asked the defendant whether he had been in touch with his attorney. The defendant stated that they had not communicated since the last time he had come to court. Judge Darkeh told the defendant that the case had been called because court begins at 9:30 A.M. The Assistant District Attorney conveyed the People's offer, and stated that to that point there had been no plea negotiations with defense counsel. Judge Darkeh told the defendant that he could speak with his attorney, and if they decided to resolve the case she would recall it that day. Still in the dark as to whether counsel planned to appear, Judge Darkeh then asked the defendant whether he wanted to return in the three days the People had requested, or to come back to court after a longer adjournment. After working out an adjourn date of the defendant's choosing and after consulting the People, the case was adjourned to September 10, 2019 for hearings and trial. Counsel arrived twenty minutes later, and a notation in the court file indicates,
This adjournment constitutes a principal point of disagreement between the parties. The defendant argues that the People should be charged for the three days they requested; the People argue that this adjournment should be excluded because the defendant was present in court without his attorney and therefore the People's readiness or lack thereof is irrelevant.
On September 10, 2019, the People were not ready because the ADA was newly assigned and requested 6 days. The case was adjourned to September 16, 2019.
6 chargeable days.
On September 16, 2019, the People announced they were ready for hearings and trial. Defense counsel filed the instant motion to dismiss, and the case was adjourned for the People's response and the Court's decision.
The Court finds the defendant's motion to be timely under C.P.L. § 170.35(2) (). See People v. Lawrence , 64 N.Y.2d 200, 206, 485 N.Y.S.2d 233, 474 N.E.2d 593 (1984).
Under the defendant's calculation, 91 days are chargeable to the People. The People contend that the three days from the August 12 adjournment should not be included, which would put the total chargeable time at 88 days. Additionally, the People argue that, if the defendant's calculation is correct, the 90th day would have fallen on a Sunday. Therefore, under General Construction Law § 25-a(1), the People would have until the following business day (in this case, Monday, September 16, 2019) to be ready, and the People did announce their readiness for trial on that day.
The Appellate Term, Second Department, explicitly applied Section 25-a(1) to C.P.L. § 30.30 in People v. Powell , 179 Misc.2d 1047, 690 N.Y.S.2d 826 (2d Dept. 1999) and this Court is bound by that decision. Observing that "[t]he General Construction Law should be read into every statute subsequently enacted, unless the wording of said statute plainly expresses a contrary intent" and that C.P.L. § 30.30 "does not express a contrary intent," the Second Department applied the provisions of § 25-a(1) of the General Construction Law and held that "the People's time to announce their readiness was extended to the next business day." 179 Misc 2d at 1048, 690 N.Y.S.2d 826.
The Appellate Division, Third Department, adopted the Powell court's reasoning in People v. Mandela , 142 A.D.3d 81, 36 N.Y.S.3d 248 (3d Dept. 2016). In applying Gen. Constr. L. § 25-a to C.P.L. § 30.30, the court ruled: "Nothing in the language of C.P.L. 30.30(1)(a) mentions weekends or holidays or otherwise indicates a legislative intent that General Construction Law § 25-a should not be applied in calculating the expiration of the speedy trial period." 142 A.D.3d at 86, 36 N.Y.S.3d 248. See also People v. Stiles , 70 N.Y.2d 765, 520 N.Y.S.2d 745, 514 N.E.2d 1368 (1987) (applying Gen. Constr. L. § 25-a to C.P.L. § 30.30 ). Therefore, in a worst case scenario for the People, they declared their readiness on day 90.
As an alternative holding, the Court finds that the three days requested by the People on August 12, 2019 are not includable in the § 30.30 calculation because on that day the defendant was without counsel within the meaning of C.P.L. § 30.30(4)(f).
Courts faced with the question of the includability of speedy trial time when a defense attorney is not present at a calendar call have relied on two separate subparagraphs of C.P.L. § 30.30(4). Subsection (4)(b) states that "the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel" is excludable from the § 30.30 calculation. Subsection (4)(f) states that the period "during which the defendant is without counsel through no fault of the court" is excludable. Different lines of decisional law have developed under each of the two provisions, and neither line, with limited exception, recognizes the existence of the other.
The case law examining the consent exclusion under Subsection (4)(b) began with People v. Liotta , 79 N.Y.2d 841, 580 N.Y.S.2d 184, 588 N.E.2d 82 (1992). In Liotta , the Court of Appeals stated, "The People's contention that a defendant consents to an adjournment either by failing to object to the adjournment, or by defense counsel's failure to appear is meritless."
Id. at 843, 580 N.Y.S.2d 184, 588 N.E.2d 82. Thus, defense counsel's failure to appear does not constitute a consent...
To continue reading
Request your trial
-
People v. Sarcone
...the decision and Order of the Court. --------- [1] See, Peo. Info. p. 2. [2] Id. [3] See, Peo. Resp. p. 2 ¶ 4 (citing People v. Lewis, 112 N.Y.S.3d 442 (Crim Kings Co. 2019)). [4] See, Peo. Resp. p. 4 ¶ 13. [5] Peo. Resp. pp. 14-19. [6] "For purposes of [CPL § 245.20(1)], all items related ......
-
People v. Kinch
...and the next day, Monday, was a public holiday, the People's speedy trial time was extended to Tuesday, October 12. People v. Lewis , 65 Misc. 3d 1044, 112 N.Y.S.3d 442 (Crime Ct., New York County 2019) ; People v. Powell , 179 Misc. 2d 1047, 690 N.Y.S.2d 826 (App. Term, 2nd Dept. 1999), lv......
-
People v. Kinch
...30, and the next day, Monday, was a public holiday, the People's speedy trial time was extended to Tuesday, October 12. People v. Lewis, 65 Misc.3d 1044 (Crime Ct., New York County 2019); People v. Powell, 179 Misc.2d 1047 (App. Term, 2nd Dept. 1999), lv. denied, 93 N.Y.2d 928. So in this m......