People v. Ozturk, 2022-50394

CourtNew York District Court
Writing for the CourtEric Sachs, J.
PartiesPeople of the State of New York v. Donna Ozturk, Defendant.
Decision Date11 May 2022
Docket Number2022-50394,CR-038927-19SU

People of the State of New York

Donna Ozturk, Defendant.

No. 2022-50394

Docket No. CR-038927-19SU

District Court of Suffolk County, First District

May 11, 2022

Unpublished Opinion

Raymond A. Tierney District Attorney of Suffolk County Spencer Mendez / Of Counsel District Court Bureau Olivier E. Roche, Esq. Attorney for Defendant

Eric Sachs, J.

Upon the following papers read on these motions for dismissal

Notice of Motion/xxxxxxxxxxxxxxx and supporting papers

Notice of Cross Motion and supporting papers

Answering Affidavits and supporting papers

Replying Affidavits and supporting papers

Filed papers

Other Exhibits

(and after hearing counsel in support of and opposed to the motion) it is, ORDERED that this third motion by the defendant to dismiss is decided as follows: The defendant's motion to dismiss the information and strike the CoC based upon an alleged violation of his statutory speedy trial rights is GRANTED.

On August 20, 2019, the defendant was charged with one count of Driving While Intoxicated in violation of New York's Vehicle & Traffic Law ["VTL"] § 1192.3, an unclassified misdemeanor, and one count of Aggravated Driving While Intoxicated in violation of VTL § 1192.2-a(a), an unclassified misdemeanor, along with four traffic infractions. She was arraigned on August 21, 2019. The People filed their initial Certificate of Compliance ["CoC"] and Statement of Readiness ["SoR"] on November 24, 2020, and a supplemental CoC on January 29, 2021. The defendant now moves this Court to dismiss the accusatory instrument and strike the CoC pursuant to CPL § 170.30 and § 30.30.

A. Prior Motions to Dismiss

On November 14, 2019, the defendant filed his first motion to dismiss on the ground that the accusatory instrument was facially insufficiency, which was denied by Judge Jennifer A. Henry on June 1, 2020. On November 24, 2020, the People filed a CoC and SoR off-calendar.

On June 4, 2021, the defendant filed a second motion to dismiss, this time on the ground that the defendant's speedy trial rights had been violated because the CoC failed to certify as to the facial sufficiency of the accusatory instruments. In a decision dated October 5, 2021, this Court denied the defendant's motion to dismiss and held that the People's supplemental CoC, filed on January 29, 2021, which contained a certification as to the facial sufficiency of the CoC, and was retroactive to November 24, 2020. In denying the defendant's motion, the Court found that a total of 77 days were chargeable to the People. (People's Aff. in Opp. at ¶ 1).

In so holding, this Court made the following speedy trial calculation:

Pursuant to § CPL 30.30(1)(b), the People were required to make an effective statement of their readiness for trial within 90 days of the commencement date of the within criminal actions, taking into account all excludable time periods. The criminal action was commenced on August 21, 2019. The defendant filed a motion to dismiss on November 14, 2019, which motion was decided on June 1, 2020. In addition, from March 20, 2020 until September 8, 2020, there were covid-related court closures set forth in Executive Order 202.8. The People filed their initial CoC in this case on November 24, 2020. On January 25, 2021, the People filed a motion for a protective order relating to discovery, which motion was pending until January 29, 2021, when the People were ordered to make disclosures by March 1, 2021. On March 10, 2021, the People filed a motion to reargue, which was pending until on or about June 2, 2021. On June 4, 2021, the defendant filed a second motion to dismiss, which was decided on October 5, 2021. In his second motion to dismiss, the defendant contended that the time periods from June 1, 2020 through November 24, 2020 (176 days) and November 24, 2020 through March 10, 2021 (106 days) were excludable.

In its decision dated October 5, 2021, this Court concluded that the time between the commencement of the action in August 2019 and March 20, 2020 was excludable, as the matter was in motion status during that period. The Court further held that the time from March 20, 2020 until September 8, 2020 was excludable because of the pandemic-related Executive Order 202.8 was in place during that time. The Court concluded that the People were chargeable only with the 77-day period from the expiration of Executive Order 202.8 on September 8, 2020 until the date the People filed their CoC on November 24, 2020. Finally, this Court found that the 176-day period from November 25, 2020 through March 10, 2021 did not count towards the speedy trial calculation because the People's CoC, filed on November 24, 2020, was valid once corrected in January 2021. In any event, the People were not chargeable with any post-readiness delay.

B. Calendar Appearances Following Defendant's Second Motion to Dismiss

Following the Court's October 5, 2021 order, there have been several court appearances. During the November 23, 2021 court appearance, the People informed this Court that the arresting officer, Officer Anthony Parenti, was unavailable to testify, as he had been injured in the line of duty. (People's Aff. in Opp. at ¶ 2; Def's Aff. at ¶ 2). The Court noted that this adjournment was on consent and the time was excludable. (People's Aff. in Opp. at ¶ 2). The matter was adjourned until December 8, 2021. (Id.) On December 8, 2021, the People stated that the officer would be back on duty as early as December 13, 2021, and announced that they were "ready" for trial. (People's Aff. in Opp. at ¶ 3)...

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