People v. Price

• Decision Date: 11 February 2010
• Citation: 2010 N.Y. Slip Op. 01013,896 N.Y.S.2d 719,14 N.Y.3d 61,923 N.E.2d 1107
• Parties: The PEOPLE of the State of New York, Appellant,v.Stephen PRICE, Respondent.
• Court: New York Court of Appeals Court of Appeals

14 N.Y.3d 61

923 N.E.2d 1107

896 N.Y.S.2d 719

2010 N.Y. Slip Op. 01013

The PEOPLE of the State of New York, Appellant,

v.Stephen PRICE, Respondent.

Court of Appeals of New York.

Feb. 11, 2010.

Thomas J. Spota, District Attorney, Riverhead (Thomas C. Costello of counsel), for appellant.Reynolds, Caronia, Gianelli, Hagney, La Pinta & Quatela, LLP, Hauppauge (Christopher B. Abbott of counsel), for respondent.

[14 N.Y.3d 62 , 923 N.E.2d 1108] OPINION OF THE COURT

Chief Judge LIPPMAN.

At issue is whether the prosecution may rely on the “exceptional circumstances” exclusion contained within CPL 30.30(4)(g) to avoid dismissal of defendant's indictment on speedy trial grounds. We hold, as the Appellate Division did below, that the exclusion does not apply under the circumstances presented here.

On February 2, 2006, defendant was arraigned in Suffolk County on a felony complaint charging him with attempted disseminating indecent material to minors in the first degree. Defendant allegedly engaged in explicit, sexually motivated internet conversations with an undercover police officer posing as a 14–year–old girl. The communication, however, did not involve the transmission of any sexual images.

Nearly six months later, on July 25, 2006, the Second Department held in People v. Kozlow, 31 A.D.3d 788, 821 N.Y.S.2d 212 (2006), revd. 8 N.Y.3d 554, 838 N.Y.S.2d 800, 870 N.E.2d 118 (2007) that a defendant may not be convicted of the above-named crime where the communications upon which the conviction is sought do not include sexual images. In light of the decision in Kozlow, the District Attorney's office prosecuting this case—which is located within the Second Department—determined that defendant could not be indicted. The criminal complaint against defendant was, however, left pending.

On April 26, 2007, this Court reversed the Second Department in Kozlow and held that a defendant charged with the subject crime may properly be convicted of that crime “even though his communications contained no nude or sexual images” (8 N.Y.3d at 556, 838 N.Y.S.2d 800, 870 N.E.2d 118). Believing that our decision in Kozlow removed any barrier to the prosecution of defendant in this case, the People presented their case to the grand jury, which returned an indictment against defendant on May 30, 2007. Defendant was arraigned on that indictment on June 14, 2007, more than 16 months after he was initially arraigned on the felony complaint.

Defendant moved to dismiss the indictment on speedy trial grounds. The People opposed the motion, arguing that the interval between the Second Department's decision in Kozlow and this Court's reversal of Kozlow—a total of 275 days—should be excluded from the speedy trial calculation pursuant to the “exceptional circumstances” provision of CPL 30.30(4)(g). Supreme Court granted defendant's motion, and the Appellate Division, in the order now before us by leave of a Judge of this Court, affirmed (61 A.D.3d 127, 873 N.Y.S.2d 327 [2d Dept.2009], lv. granted 12 N.Y.3d 919, 884 N.Y.S.2d 700, 912 N.E.2d 1081 [2009] ).

CPL 30.30(1)(a) requires the People to be ready for trial within six months of the commencement of a criminal action in which a felony is charged. The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded. CPL 30.30(4) sets forth certain “periods [that] must be excluded,” and includes a catchall provision for

“other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting from a continuance granted at the request of a district attorney if (i) the continuance is granted because of the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available in a reasonable period; or (ii) the continuance is granted to allow the district attorney additional time to prepare the people's case and additional time is justified by the exceptional circumstances of the case.” (CPL 30.30[4][g].)

The parties here do not dispute that the People were not ready for trial within the six-month statutory limitation unless the period between the Second Department's decision in Kozlow and this Court's reversal in that case is deemed an “exceptional circumstance.”

We have observed that “[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30(4)(g),” since it is impossible to “anticipate every situation that might warrant tolling of the speedy trial time period” ( People v. Smietana, 98 N.Y.2d 336, 341, 746 N.Y.S.2d 678, 774 N.E.2d 743 [2002] ). It is clear, however, that the range of the term's application is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction ( see People v. Sinistaj, 67 N.Y.2d 236, 239, 501 N.Y.S.2d 793, 492 N.E.2d 1209 [1986]; People v. Worley, 66 N.Y.2d 523, 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228 [1985] ). Mindful of this principal underlying purpose, we have allowed application of the exclusion only when the People for practical reasons beyond their control cannot proceed with a legally viable prosecution ( see e.g. People v. Washington, 43 N.Y.2d 772, 401 N.Y.S.2d 1007, 372 N.E.2d 795 [1977]; People v. Zirpola, 57 N.Y.2d 706, 708, 454 N.Y.S.2d 702, 440 N.E.2d 787 [1982] ). Moreover, we note that, although not required, the statute's text contemplates that the prosecutor will seek a continuance from the court where the circumstances make it impossible to proceed. The Legislature thus envisioned an approach by which the prosecutor could secure a prior judicial ruling as to exceptional circumstances rather than ask a court to apply the exclusion after the fact. This would ensure that the defendant is kept abreast of the status of his case and the charges pending against him.

Here, as the People concede, after the Appellate Division's decision in Kozlow, there could have been no legal basis to proceed further against defendant. The criminal complaint could have been withdrawn at that juncture. Subsequently, after this Court's reversal in Kozlow, when the prosecution again became legally viable, the People could have attempted to recommence the prosecution.^*

Although the circumstances presented here are unusual, they are not exceptional within the meaning of CPL 30.30(4)(g). What is involved in the final analysis is prosecutorial inaction resulting in the prolonged pendency of a criminal complaint without any judicial intervention and any notification to defendant of the status of the proceeding. This is precisely the sort of conduct the Legislature intended to curb when it enacted CPL 30.30.

Application of the exclusion under these circumstances would permit a scenario in which a criminal complaint could pend for an open-ended and potentially lengthy period on the mere prospect that a change in the law might render it again viable. As we stated...