People v. McClure
| Docket Number | Docket No. CR-000171-23BX |
| Decision Date | 14 June 2023 |
| Citation | 2023 NY Slip Op 23184 |
| Parties | The People of the State of New York, v. Tyshawn McClure, Defendant. |
| Court | New York Criminal Court |
Kevin D McLoone, Esq., for Defendant, and Jordyn Fleisher, Office of the Bronx County District Attorney for The People.
MATTHEW V. GRIECO, J.C.C.
Defendant Tyshawn McClure is charged by information with Assault in the Third Degree (Penal Law § 120.00[1]), a class A misdemeanor; Menacing in the Second Degree (Penal Law § 120.14[1]), a class A misdemeanor; Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[1]), a class A misdemeanor; Criminal Mischief in the Fourth Degree (Penal Law § 145.00[1]), a class A misdemeanor Endangering the Welfare of a Child (Penal Law § 260.10[1]), a class A misdemeanor; and Harassment in the Second Degree (Penal Law § 240.26[1]), a violation.
By motion dated April 27, 2023, Defendant moves for an order to dismiss the accusatory instrument on the ground that he has been denied a speedy trial pursuant to CPL 30.30.
Defendant was arraigned January 3, 2023, and the case was adjourned to January 24, 2023 and again on March 1, 2023, for conversion and for the People to certify discovery compliance. On March 1, 2023, the People filed and served two supporting depositions, and the complaint was deemed an information. The case was next adjourned to April 13, 2023 for the People's Certificate of Compliance ("COC"). On April 1, 2023, the People filed and served a COC. On April 13, 2023, the Court set a motion schedule and adjourned the matter to June 15, 2023 for decision.
The People must be ready for trial within ninety days of the commencement of a criminal action if, as here, the most serious offense is the equivalent of an A misdemeanor punishable by a sentence of imprisonment of more than three months (CPL 30.30 [1][b]). Although a criminal action commences with the filing of an accusatory instrument, computation for speedy trial purposes commences on the next day (People v Stiles, 70 N.Y.2d 765 [1987]).
In determining whether the People have satisfied their obligation to be ready for trial under CPL 30.30, the court must calculate the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtract any statutorily excludable periods of delay, and finally add any periods of post-readiness delay that are attributable to the People for which no statutory exclusions apply (People v Cortes, 80 N.Y.2d 201 [1992]).
The People cannot be deemed ready for trial until a proper COC is filed with the court and served upon the Defense. Criminal Procedure Law § 30.30 (5) provides that "[a]ny statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20," and "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for the purposes of section 30.30 until it has filed a proper certificate" (CPL 245.50 [3]).
Defendant was arraigned on January 3, 2023. The case was adjourned to January 24, 2023, for conversion and discovery compliance. The People are charged with 21 days.
On January 24, 2023, the case was adjourned to March 1, 2023, for conversion and COC. The People are charged with 36 days, for a total of 57 days.
On March 1, 2023, the People filed and served two supporting depositions, and the complaint was deemed an information. The case was adjourned to April 13, 2023.
On April 1, 2023, the People filed and served a COC and Statement of Readiness. The People are charged with 31 days, for a total of 88 days.
On April 13, 2023, Defendant requested a motion schedule. The case was adjourned to June 15, 2023 for decision. That adjournment is excludable (CPL 30.30 [4][a]).
Based on the foregoing, the People are charged with 88 days of delay, which is within the statutory period under CPL 30.30.
Defendant states that on April 1, 2023 the People served prior counsel, Eli Moore, with a COC and Statement of Readiness, and that on April 2, 2023 the People sent the papers to Kevin D. McLoone, who had been substituted in as counsel on March 1, 2023. Defendant argues that one more day is chargeable to the People, since they served the wrong attorney on April 1, 2023.
(People v Cenat, 176 Misc.2d 39, 44 [Crim Ct, Kings County 1997]; see People v Anderson, 252 A.D.2d 399, 400 [1st Dept 1998] [], lv denied 92 N.Y.2d 1027 [1998]).
Defendant cites People v Zhu (171 Misc.2d 298 [Sup Ct, Kings County 1997], revd on other grounds 245 A.D.2d 296 [2d Dept 1997]) for the proposition that service upon former counsel is ineffective and renders a statement of readiness invalid where the People have actual knowledge new counsel has been substituted. However, Zhu and the cases following it entailed the defense not learning about the statement of readiness until the next court appearance, the failure of the prosecution to make any effort to notify the correct attorney, and more extensive delays than here (see People v Telemaque, 36 Misc.3d 1239 [A] [Crim Ct, Kings County 2012] [23 day delay from when the People served prior counsel and the next court appearance]; People v Corley, 30 Misc.3d 1232 [A] [Crim Ct, NY County 2011] [48 day delay]; People v Collins, 186 Misc.2d 818 [Crim Ct, Richmond County 2000] [5 day delay], affd on other grounds 190 Misc.2d 72 [App Term, 2d Dept 2001]; People v Chittumuri, 189 Misc.2d 743 [Crim Ct, Queens County 2001] [28 day delay]; Zhu, supra [15 day delay]). Cases that did not cite Zhu but were in accord involved similar circumstances (see People v Dixon, 40 Misc.3d 1229[A] [Sup Ct, Kings County 2013] [11 day delay], People v Stewart, 21 Misc.3d 1109[A] [Crim Ct, NY County 2008] [12 day delay]; People v Starkey, 4 Misc.3d 1002 [A] [Sup Ct, Kings County 2004] [27 day delay]; see also People v Bonilla, 94 A.D.3d 633 [1st Dept 2012] []; People v Chen, 78 Misc.3d 1212 [A] [Crim Ct, Queens County 2023] [62 day delay between filing statement of readiness and defense counsel first learning of it when speaking with prosecutor]; People v Dweck, 64 Misc.3d 1204 [A] [Crim Ct, Kings County 2019] [20 day delay between filing statement of readiness and serving counsel not prompt]; People v Parker, 39 Misc.3d 419 [Justice Ct, Hyde Park 2013] [9 day delay between filing statement of readiness and defense counsel learning of it at next appearance]; People v Todd, 184 Misc.2d 381 [Crim Ct, Kings County 2000] [27 day delay between filing statement of readiness and defense first learning of it at next court appearance]; People v Diener, 153 Misc.2d 963 [County Ct, Greene County 1992] [54 day delay between filing statement of readiness and defense first learning of it at next court appearance]).
Indeed, the Zhu line of cases have generally noted that there is no requirement of immediate notice to defense counsel following an off calendar filing, and that the standard set forth in Kendzia is "prompt notification" (see e.g. Chittumuri, 189 Misc.2d at 748). Those cases have also stated that the rationale behind the prompt notification rule is:
First, it gives some assurance that the prosecution believes in good faith that it is ready to proceed to trial. Second, it insures that the declaration is made to the court and defense as contemporaneously as possible to closely mirror a declaration made in open court in the presence of the defense. Finally, prompt notification of the People's state of trial readiness allows the defense to prepare to proceed without further delay on the next scheduled trial date [ Collins, 186 Misc.2d at 820].
Here the People corrected their mistaken service upon the wrong counsel one day later, which was eleven days before the next court appearance. Thus, the People promptly served Defendant, and the concerns voiced in Zhu...
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