People v. Percell

• Decision Date: 10 February 2020
• Docket Number: 2019NY003678
• Citation: 119 N.Y.S.3d 731,67 Misc.3d 190
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Duane PERCELL, Defendant.
• Court: New York Criminal Court

67 Misc.3d 190

119 N.Y.S.3d 731

The PEOPLE of the State of New York, Plaintiff,

v.Duane PERCELL, Defendant.

2019NY003678

Criminal Court, City of New York.

Decided on February 10, 2020

For the defendant: Shinequa Charles, Esq., The Legal Aid Society, 49 Thomas Street, NY, NY 10013

For the People: Jennifer Soliman, Assistant District Attorney, District Attorney's Office, New York County, 1 Hogan Place, NY, NY 10013

Marisol Martinez Alonso, J.

On January 27, 2019, the defendant was arraigned on a misdemeanor complaint and charged with one count of Driving While Intoxicated ( Vehicle and Traffic Law § 1192[2] ), an unclassified misdemeanor, one count of Driving While Intoxicated ( Vehicle and Traffic Law § 1192[3] ), an unclassified misdemeanor, one count of Driving While Ability Impaired ( Vehicle and Traffic Law § 1192[1] ), a traffic infraction, and one count of Leaving the Scene of an Incident Without Reporting ( Vehicle and Traffic Law § 600[1][a] ), a traffic infraction. By Notice of Motion, filed and served on January 24, 2020, the defendant moved for an order dismissing the charges based on the People's failure to be ready for trial pursuant to Criminal Procedure Law § 30.30[1] and constitutional speedy trial grounds pursuant to Criminal Procedure Law § 30.20[1]. The People filed their response on February 4, 2020.

By Decision and Order, dated November 25, 2019, this court found that 88 days were charged to the People under Criminal Procedure Law § 30.30 and denied a prior motion to dismiss the misdemeanor charges. That decision also denied the motion to dismiss the traffic infractions under Vehicle and Traffic Law §§ 1192[1] and 600[1][a] because, under the statute at the time, those charges were not subject to dismissal pursuant to Criminal Procedure Law § 30.30[1] ( People v. Taylor , 189 Misc 2d 313, 731 N.Y.S.2d 324 [App. Term 2nd Dept. 2001] ; People v. Gonzalez , 168 Misc. 2d 136, 645 N.Y.S.2d 978 [App. Term 1st Dept.], appeal denied , 88 N.Y.2d 936, 647 N.Y.S.2d 170, 670 N.E.2d 454 [1996] ). Finally, the decision reminded the parties to be ready for hearings and trial on December 13, 2019 when the case was next on the Part E calendar.

On December 13, 2019, the People answered ready for hearings and trial. The defense answered not ready because the defendant had been assigned to a new attorney from The Legal Aid Society. The court adjourned the case to January 13, 2020 for hearings and trial. This adjournment is excluded for two reasons. First, the adjournment is excluded because the People answered ready for hearings and trial and second the adjournment is excluded because the defendant, through his attorney, requested the adjournment ( CPL 30.30[4][b] ).

On January 13, 2020, the People answered ready for hearings and trial and the newly assigned defense counsel from The Legal Aid Society appeared for the first time and requested a motion schedule. The court granted this request. The court directed the defense counsel to file and serve their motion by January 24, 2020, and the People to respond by January 31, 2020. The court adjourned the case to February 10, 2020 in Jury Part 9 for decision. This adjournment is excluded ( CPL 30.30[4][a] ; People v. Reed , 19 A.D.3d 312, 798 N.Y.S.2d 47 [1st Dept. 2005] ; People v. Sinisgalli , 24 Misc 3d 135(A), 897 N.Y.S.2d 671 [App. Term 1st Dept. 2009] ).

Although the entire adjournment from December 13, 2019 until January 13, 2020 is excluded because the People answered ready for trial and the defense counsel requested the adjournment, the defendant argues the People should be charged with the first 13 days of the January 2020 calendar and thus, there are 101 chargeable days to the People. For the reasons stated below, the court disagrees and finds that only 88 days are charged to the People. Therefore, the defendant's motion to dismiss the charges pursuant to Criminal Procedure Law § 30.30[1] is DENIED .

Additionally, the defendant argues the charges should be dismissed because he has been denied his due process right to a speedy trial (United States Constitution, 6th & 14th Amendment ; New York Constitution , Article I, § 6 ; CPL 30.20 ). For the reasons stated below, the motion to dismiss the charges pursuant to Criminal Procedure Law § 30.20[1] is DENIED .

On January 1, 2020, new legislation regarding criminal discovery and statutory speedy trial went into effect that impact this case. Criminal Procedure Law § 245.50 now requires the People to file a certificate stating that the People have complied with their discovery obligations prior to them being able to announce their readiness for trial as required by Criminal Procedure Law § 30.30. In this case, the People filed a Certificate of Compliance (herein after C.O.C.) and a Certificate of Readiness (herein after C.O.R.) on December 31, 2019. This filing included an affirmation of service upon defense counsel. On January 2, 2020, the People filed with the court and served on defense counsel a supplemental C.O.C. and another C.O.R. On January 6, 2020, the People served on defense counsel the Gas Chromatography Record as is now required ( CPL 245.20[s] ). On January 8, 2020 the People served on defense counsel a copy of the memo book of a police officer witness and a command log ( CPL 245.20[e] ). On January 8, 2020 the People filed with the court and served on defense counsel another supplemental C.O.C. and another C.O.R. The defendant claims that the three C.O.C.s and three C.O.R.s are illusory because the People failed in their discovery obligations. However, because the adjournment from December 13, 2019 until January 13, 2020 is excluded, the determination as to whether these three off-calendar statements by the People were valid is irrelevant with regard to the instant motion to dismiss.

Furthermore, the continued efforts by the People in this case to comply with their discovery obligations do not render their prior statements of readiness for trial illusory ( People v. Wright , 50 A.D.3d 429, 855 N.Y.S.2d 475 [1st Dept.], appeal denied, 10 N.Y.3d 966, 863 N.Y.S.2d 150, 893 N.E.2d 456 [2008] [nothing in CPL 30.30 precludes the People from declaring present readiness for trial but still gathering additional evidence]; People v. Rodriguez , 306 A.D.2d 686, 761 N.Y.S.2d 368 [3rd Dept.], appeal denied, 100 N.Y.2d 624, 767 N.Y.S.2d 407, 799 N.E.2d 630 [2003] ; People v. Zale , 137 A.D.3d 634, 28 N.Y.S.3d 360 [1st Dept. 2016] [People's delay in obtaining and producing the calibration report which was ultimately provided to defense counsel just prior to trial was at most a failure to comply with a discovery obligation and did not render prior statements of readiness illusory], appeal denied, 27 N.Y.3d 1141, 39 N.Y.S.3d 124, 61 N.E.3d 523 [2016] ). Under the new law, Criminal Procedure Law § 245.50[1] and Criminal Procedure Law § 245.80 provide guidance to a trial court regarding supplemental certificates of compliance.

"Whether the People have satisfied [their CPL 30.30 ] obligation is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any post readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion." ( People v. Cortes , 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ). The adjournment from December 13, 2019 until January 13, 2020 cannot be attributed to the People. The fact that the People validly stated ready for trial on December 13, 2019, renders that entire adjournment excluded for statutory speedy trial purposes regardless of the defendant's response. Furthermore, the fact that the...