People v. Plaza

• Decision Date: 30 June 2021
• Docket Number: CR-019303-20NY
• Citation: 72 Misc.3d 888,149 N.Y.S.3d 875
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Anthony PLAZA, Defendant.
• Court: New York Criminal Court

72 Misc.3d 888

149 N.Y.S.3d 875

The PEOPLE of the State of New York, Plaintiff,

v.Anthony PLAZA, Defendant.

CR-019303-20NY

Criminal Court, City of New York, New York County.

Decided on June 30, 2021

PEOPLE, Yesenia Brewster, Assistant District Attorney, Trial Bureau 80, New York County District Attorney's Office, 80 Centre Street, Room 774, New York, NY 10013

DEFENDANT, Khushboo Sapru, Legal Aid Society, 49 Thomas Street, New York, NY 10013

James G. Clynes, J.

The defendant, charged with one count each of Menacing in the Second Degree ( Penal Law ["PL"] § 120.14 [1] ), Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01 [2]); Unlawful Possession of Marihuana in the Second Degree (PL § 221.05); and Harassment in the Second Degree (PL § 240.26 [1]), moves, pursuant to Criminal Procedure Law ("CPL") §§ 30.30 (5-a) and 170.40 (1) (e),¹ for an order dismissing the information because he has been denied his right to a speedy trial.

In support of his motion, the defendant submits a notice of motion and supporting attorney affirmation, dated and filed April 6, 2021, and exhibits. The People submitted a response and a supplemental response with exhibits in opposition.

CPL § 30.30 (1) (b) requires dismissal of an accusatory instrument where the People are not ready for trial within 90 days of the commencement of a criminal action where, as here, the charges carry the potential sentence of imprisonment of more than three months. The determination as to whether the People have satisfied their obligation under CPL § 30.30 is done by computing the time between the filing of the accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under CPL § 30.30 (4) and then adding any post-readiness periods of delay that are actually attributable to the People for which no statutory exclusions apply ( People v. Cortes , 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ).

In a motion to dismiss, pursuant to CPL § 30.30, the defendant bears the initial burden of demonstrating that the People were not ready within the statutory time period ( People v. Sibblies , 22 N.Y.3d 1174, 985 N.Y.S.2d 474, 8 N.E.3d 852 [2014] ; People v. Santos , 68 N.Y.2d 859, 508 N.Y.S.2d 411, 501 N.E.2d 19 [1986] ). The burden then shifts to the People to establish whether a period should be excluded from the speedy trial calculation ( People v. Santos , 68 N.Y.2d 859, 508 N.Y.S.2d 411, 501 N.E.2d 19 [1986] ; People v. Berkowitz , 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 [1980] ; CPL § 30.30 [4] ).

On January 1, 2020, new legislation took effect imposing additional requirements on the People before they could be deemed ready for trial pursuant to CPL § 30.30.

CPL § 30.30 (5), which relates to the People's discovery obligations, provides "any statement of trial readiness must be accompanied or preceded by a certification of good faith compliance with the disclosure requirements of section 245.20 of this chapter and the defense shall be afforded an opportunity to be heard on the record as to whether the disclosure requirements have been met" ( CPL § 30.30 [5] ). "Whenever pursuant to this section a prosecutor states or otherwise provides notice that the people are ready for trial, the court shall make inquiry on the record as to their actual readiness" (Id.).

CPL § 30.30(5-a), which relates to the facial sufficiency of an accusatory instrument, provides,

Upon a local criminal court accusatory instrument, a statement of readiness shall not be valid unless the prosecuting attorney certifies that all counts charged in the accusatory instrument meet the requirements of sections 100.15 and 100.40 of this chapter and those counts not meeting the requirements of sections 100.15 and 100.40 of this chapter have been dismissed"

CPL § 100.15 provides the following:

"1. An information, a misdemeanor complaint and a felony complaint must each specify the name of the court with which it is filed and the title of the action, and must be subscribed and verified by a person known as the "complainant." The complainant may be any person having knowledge, whether personal or upon information and belief, of the commission of the offense or offenses charged. Each instrument must contain an accusatory part and a factual part. The complainant's verification of the instrument is deemed to apply only to the factual part thereof and not to the accusatory part.

2. The accusatory part of each such instrument must designate the offense or offenses charged. As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts. Also, as in the case of an indictment, such instrument may charge two or more defendants provided that all such defendants are jointly charged with every offense alleged therein.

3. The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions.

4. Where a felony complaint charges a violent felony offense defined in section 70.02 of the penal law and such offense is an armed felony as defined in subdivision forty-one of section 1.20,

(a) the accusatory part of the instrument must designate the offense as an armed felony, and

(b) the factual part of the instrument must allege facts of an evidentiary character supporting or tending to support such designation."

CPL § 100.40 provides the following:

"1. An information, or a count thereof, is sufficient on its face when:

(a) It substantially conforms to the requirements prescribed in section 100.15 ; and

(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and

(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.

2. A simplified information is sufficient on its face when, as provided by subdivision one of section 100.25, it substantially conforms to the requirement therefor prescribed by or pursuant to law; provided that when the filing of a supporting deposition is ordered by the court pursuant to subdivision two of said section 100.25, a failure of the complainant police officer or public servant to comply with such order within the time provided by subdivision two of said section 100.25 renders the simplified information insufficient on its face.

3. A prosecutor's information, or a count thereof, is sufficient on its face when it substantially conforms to the requirements prescribed in section 100.35.

4. A misdemeanor complaint or a felony complaint, or a count thereof, is sufficient on its face when:

(a) It substantially conforms to the requirements prescribed in section 100.15 ; and

(b) The allegations of the factual part of such accusatory instrument and/or any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of such instrument."

On October 25, 2020, the court arraigned the defendant on the accusatory instrument and adjourned the matter for supporting deposition to January 21, 2021.²

On January 8, 2021, the People served and filed, off-calendar, a supporting deposition, a certificate of compliance ("COC"), a certificate of readiness ("COR"), (hereinafter the "January 8, 2021 COR"), and an automatic discovery form ("ADF").

On January 21, 2021, the court noted that the People, off-calendar on January 8, 2021, served and filed a supporting deposition, a certificate of compliance ("COC"), a certificate of readiness ("COR"), an automatic discovery form ("ADF") and an addendum to the ADF; the court deemed the accusatory instrument and the supporting deposition to be an information; and adjourned the matter for trial to March 11, 2021. Also, on January 21, 2021, the People stated ready at a second call, and the defendant, after declining a motion schedule and requesting an adjournment for trial, filed and served, off-calendar through the Electronic Document Delivery System ("EDDS"), a pre-trial omnibus motion, dated January 14, 2021.³

On March 11, 2021, the People stated not ready because a necessary witness was unavailable and requested a trial date of March 15, 2020; the parties did not address the defendant's pre-trial omnibus motion (filed off-calendar on January 21, 2021); and the court adjourned the matter for trial to April 20, 2021.

On March 22, 2021, the People, off-calendar, served and filed a COR, dated March 19, 2021.⁴

On April 20, 2021, the People stated ready and the court noted that the People previously filed an off-calendar certificate of readiness on March 22, 2021;⁵ resolved the defendant's January 21, 2021 omnibus motion; and adjourned the matter for hearings and trial to June 2, 2021.

On April 26, 2021, the defendant served and filed the instant motion off-calendar. On May 24, 2021, the People served and filed a response to the instant motion. On June 2, 2021, the court adjourned the matter for decision on June 30, 2021. On June 16, 2021, the People filed a...