People v. Odjody
| Decision Date | 08 May 2012 |
| Docket Number | No. 2011KN031919.,2011KN031919. |
| Citation | 953 N.Y.S.2d 552,35 Misc.3d 1221,2012 N.Y. Slip Op. 50804 |
| Court | New York Criminal Court |
| Parties | The PEOPLE of the State of New York v. Florence ODJODY, Defendant. |
OPINION TEXT STARTS HERE
Fayola L. Williams, Assistant District Attorney, Kings County District Attorney's Office, Brooklyn, for The People.
Douglas G. Rankin, Esq., Brooklyn, for Defendant Duran.
Defendant, FLORENCE ODJODY, is charged with one count of Assault in the Third Degree (Penal Law § 120.00[1] ); one count of Attempted Assault in the Third Degree (P.L. § 110/120.00 [1] ); one count of Menacing in the Third Degree (P.L. § 120.15); and one count of Harassment in the Second Degree (P.L. § 240.26[1] ). On October 13, 2011 the defendant moved to dismiss the complaint pursuant to Criminal Procedure Law § 30.30(1)(b) on the grounds that she has been denied her statutory right to a speedy trial. The key issue in this case revolves around the service of documents upon defense counsel.
New York Civil Practice Laws & Rules § 308 governs the service of legal documents as follows:
Personal service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served; or
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law; or
3. by delivering the summons within the state to the agent for service of the person to be served as designated under rule 318, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law;
5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.
6. For purposes of this section, “actual place of business” shall include any location that the defendant, through regular solicitation or advertisement, has held out as its place of business.
Under C.P.L. § 30.30(1)(b) the People must be ready for trial within ninety (90) days from the commencement of a criminal action when the defendant is charged with one or more offenses, at least one of which is an A Misdemeanor or Unclassified Misdemeanor punishable by no more than one (1) year in jail. Once the defendant has alleged a delay of more than this allowable time, the People have the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. People v. Fields, 214 A.D.2d 332, 625 N.Y.S.2d 483 (1st Dept 1995); People v. Santos, 68 N.Y.2d 859, 501 N.E.2d 19, 508 N.Y.S.2d 411 (1986); People v. Berkowitz, 50 N.Y.2d 333, 406 N.E.2d 783, 428 N.Y.S.2d 927 (1980).
The instant action commenced with the defendant's arraignment on April 23, 2011. For purposes of the computation of the applicable speedy trial time, the day on which the accusatory instrument is filed is excluded. People v. Stiles, 70 N.Y.2d 765, 514 N.E.2d 1368, 520 N.Y.S.2d 745 (1987). Accordingly, April 24, 2011 constitutes day one (1) of the ninety (90) day period applicable to the instant charges. On April 23, 2011, the case was adjourned to July 7, 2011 for the People to file a supporting deposition in order to resolve hearsay within the complaint. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. People v. Colon, 59 N.Y.2d 921, 453 N.E.2d 548, 466 N.Y.S.2d 319 (1983). 74 days are chargeable to the People.
On July 7, 2011 the case was adjourned to August 3, 2011 for the People to file a supporting deposition. Effective readiness requires that the People have a jurisdictionally sufficient accusatory instrument. (See, People v. Colon, supra ). 27 days elapsed during this adjournment. However, the People filed the supporting deposition and a statement of readiness off-calendar on July 11, 2011, in an effort to fully convert the complaint and toll the speedy trial clock 4 days into the adjournment period. People v. Curtis, 196 Misc.2d 1001, 764 N.Y.S.2d 590 (Crim. Ct, New York County 2003); People v. Stirrup, 91 N.Y.2d 434, 671 N.Y.S.2d 433, 694 N.E.2d 434 (1998); People v. Douglas, 264 A.D.2d 671, 696 N.Y.S.2d 115 (1st Dept, 1999). Thus, assuming proper compliance with C.L.P.R § 308 rules on service of documents, the period following the filing of the statement of readiness and the August 3, 2011 appearance would generally be excludable, thereby resulting in 4 days charged to the People. According to the court file's “blue-back” and the Notice of Appearance in the file dated April 23, 2011, the attorney of record was John Godfrey of the Legal Aid Society.
On August 3, 2011 the defendant was absent from court and a bench warrant was stayed at the request of defense counsel. Whether or not the People announce ready, the subsequent period is properly excluded from the time in which the People are required to be ready because defendant failed to appear and a bench warrant was issued and stayed against him.' People v. Benjamin, 292 A.D.2d 191, 192, 739 N.Y.S.2d 667 [1st Dept 2002]; see also, People v. Patterson, 165 A.D.2d 779, 564 N.Y.S.2d 48 [1st Dept 1990] [].)” See also, People v. Notholt, 242 A.D.2d 251, 254, 662 N.Y.S.2d 297 [1st Dept 1997] []”
The court noted that the People had mailed the supporting deposition and a written statement of readiness to defense attorney John Godfrey of the Legal Aid Society on July 11, 2011, not the attorney present in court, who is identified only as “Sloane” in the transcript, but stated that he was associated with attorney Douglas Rankin. The court also noted that there was no Notice of Appearance from Mr. Rankin's firm in the file and requested that Mr. Sloane leave a Notice of Appearance in the court file. This court takes notice of the fact that there is a Notice of Appearance from Mr. Rankin's firm, initialed by Mr. Sloane and dated August 3, 2011, currently in the court file.
Defendant argues that the July 11, 2011 conversion of the complaint and the People's statement of readiness are invalid because these documents were served upon attorney John Godfrey, instead of attorney Douglas Rankin.
The People argue that the key to the validity of the conversion of the complaint and statement of readiness lies in whether the People acted in good faith. In People v. Vaughn, 36 A.D.3d 434, 831 N.Y.S.2d 27 (1st Dept 2007), although the statement of readiness was sent to the former address of same defendant's counsel, the defense attorney himself conceded that there was no bad faith. Id. at 434, 831 N.Y.S.2d 27. However, in the case at bar an entirely different attorney was served with the supporting deposition and Mr. Rankin has not made any concessions regarding the characterizations of the People's actions. In the instant case the defendant argues that serving the papers on another attorney prevented the defendant from receiving key documents in this case in a timely manner.
In People v. Chu Zhu, 171 Misc.2d 298, 654 N.Y.S.2d 272 (Sup Ct, Kings County 1997), the People possessed actual knowledge of the substitution of counsel and conceded that they were aware of the change in lawyers. The court held that the People had chosen...
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