People v. Prisco

• Decision Date: 20 April 2011
• Citation: 32 Misc.3d 349,2011 N.Y. Slip Op. 21165,921 N.Y.S.2d 831
• Parties: The PEOPLE of the State of New York v. Neil PRISCO, Defendant.
• Court: New York Criminal Court

32 Misc.3d 349
921 N.Y.S.2d 831

The PEOPLE of the State of New York
v.
Neil PRISCO, Defendant.

Criminal Court, City of New York,
Queens County.

April 20, 2011.

[921 N.Y.S.2d 833]

Robert Gursky, for defendant.

ADA Gloria Lam, for the People.

ELISA S. KOENDERMAN, J.

The defendant, Neil Prisco, is charged with Criminal Contempt in the Second Degree, Penal Law [“PL”] § 215.50(3) and two counts of Aggravated Harassment in the Second Degree, PL § 240.30(1)(a) & (1)(b). The defendant moves to dismiss the criminal proceeding against him on the ground that he has been denied his right to a speedy trial pursuant to Criminal Procedure Law [“CPL”] § 30.30(1)(b), alleging that more than ninety days have elapsed since his arraignment. Because the Court calculates that more than ninety (90) days are chargeable to the People, the defendant's motion to dismiss is granted.

Pursuant to CPL § 30.30(1)(b), the People must be ready for trial within ninety (90) days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three months. Although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day ( see People v. Stiles, 70 N.Y.2d 765, 520 N.Y.S.2d 745, 514 N.E.2d 1368 [1987] ).

[921 N.Y.S.2d 834]

Whether the People have satisfied their obligation to be ready under CPL § 30.30 is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional delays that transpire after readiness has been declared when such delays are attributable to the People and are ineligible for any exclusions under the statute ( see People v. Cortes, 80 N.Y.2d 201, 208, 590 N.Y.S.2d 9, 604 N.E.2d 71 [1992] ).

For the People to be “ready for trial” under CPL § 30.30, they must meet two requirements. First, they must communicate their readiness either on the record in open court or by a written notice simultaneously sent to defense counsel and filed with the court clerk ( see People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 [1985] ). Second, the People must declare their readiness only when they are presently ready to proceed to trial ( see id.).

The People are presently ready to proceed to trial when they “have done all that is required of them to bring the case to a point where it may be tried” ( People v. England, 84 N.Y.2d 1, 4, 613 N.Y.S.2d 854, 636 N.E.2d 1387 [1994] ). Trial readiness is established where “the People have a valid accusatory instrument upon which the defendant may be brought to trial, where the People have complied with their obligation to produce for trial a defendant in their custody and where the People have complied with all pending proceedings required to be decided before trial can commence” ( People v. Caussade, 162 A.D.2d 4, 8, 560 N.Y.S.2d 648 [2d Dept. 1990] [internal citations omitted] ).

Once the People have declared their readiness for trial they have satisfied their obligation under the statute ( see People v. Giordano, 56 N.Y.2d 524, 449 N.Y.S.2d 955, 434 N.E.2d 1333 [1982] ) and are not chargeable with any delay in proceeding due to court congestion ( see People v. Chavis, 91 N.Y.2d 500, 502, 673 N.Y.S.2d 29, 695 N.E.2d 1110 [1998] ). The People are chargeable only with delay they have caused which “directly implicates [their] ability to proceed with trial” ( Cortes, 80 N.Y.2d at 210, 590 N.Y.S.2d 9, 604 N.E.2d 71).

Delays occasioned by adjournments which are requested or consented to by the defendant are not chargeable to the People ( see People v. Worley, 66 N.Y.2d 523, 525, 498 N.Y.S.2d 116, 488 N.E.2d 1228 [1985];People v. Kopciowski, 68 N.Y.2d 615, 617, 505 N.Y.S.2d 52, 496 N.E.2d 211 [1986] ). Specifically, the period of delay resulting from a defendant's pretrial motion and the time during which it is under consideration by the court is excludable as having been “caused by the defendant for his own benefit” ( Worley, 66 N.Y.2d at 527, 498 N.Y.S.2d 116, 488 N.E.2d 1228;seeCPL § 30.30[4][a] ).

On June 9, 2010, the defendant was arraigned on the misdemeanor complaint and the case was adjourned to July 7, 2010 for the People to file and serve a supporting deposition to convert the complaint to an information. The People concede that there are twenty-seven (27) days chargeable to them for this adjournment.

On July 7, 2010, the People filed and served a supporting deposition from the complainant. Nevertheless, the court declined to deem the complaint an information, ruling that the complaint was defective because it was jurisdictionally and facially insufficient. The court adjourned the matter to July 29, 2010 for the People to file a superceding information. Since the People did not have valid accusatory instrument upon which they could try the defendant ( see

[921 N.Y.S.2d 835]

People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 [1983];see also Caussade, 162 A.D.2d at 8, 560 N.Y.S.2d 648), there are twenty-two (22) days chargeable to the People for this adjournment.

On July 29, 2010, the People filed and served an amended supporting deposition from the complainant and announced ready for trial. The court set a motion schedule at defense counsel's request and adjourned the matter to September 24, 2010 for decision. Off-calendar on August 18, 2010, the defendant filed a motion to dismiss for facial insufficiency. On September 24, 2010, the...