People v. Quiles

• Decision Date: 28 August 1998
• Parties: , 1998 N.Y. Slip Op. 98,684 The PEOPLE of the State of New York, Plaintiff, v. Dennis QUILES, Defendant.
• Court: New York City Court

Page 775

683 N.Y.S.2d 775

179 Misc.2d 59, 1998 N.Y. Slip Op. 98,684

The PEOPLE of the State of New York, Plaintiff, v. Dennis QUILES, Defendant.

Criminal Court, City of New York New York County.

Aug. 28, 1998.

Linda Bucher, Kew Gardens, for defendant.

Robert E. Morgenthau, District Attorney of New York County, New York City (Amy Montoya of counsel), for plaintiff.

LUCY BILLINGS, J.

The people have charged defendant with three class A misdemeanors, Assault in the Third Degree, N.Y. Penal Law (P.L.) § 120.00(1), Menacing in the Second Degree, P.L. § 120.14(1), and Criminal Possession of a Weapon in the Fourth Degree, P.L. § 265.01(2); a class B misdemeanor, Attempted Assault in the Third Degree, P.L. §§ 110.00, 120.00(1); and a violation, Harassment in the Second Degree, P.L. § 240.26(1). Defendant moves to dismiss the accusatory instrument on the ground that the people were not ready for trial within the statutory time. For the reasons discussed below, the court grants the motion.

I. THE RECORD OF EVENTS AND THE PARTIES' CONTENTIONS

On December 18, 1997, defendant was arraigned on a misdemeanor complaint charging the five offenses listed above. The complaint does not specify which of three complainants charges which offense. The factual allegations indicate that defendant committed assault in the third degree, attempted assault, and harassment against "Augustine Devalle" and "April Devalle" (Agustin Del Valle and April Del Valle according to their supporting depositions) and the remaining class A misdemeanors, menacing and criminal possession of a weapon, against Eddie Rivera.

The people were required to declare their readiness for trial within 90 days, by March 18, 1998, absent excludable time. N.Y.Crim.Proc. Law (C.P.L.) § 30.30(1)(b). Thus defendant has demonstrated a prima facie violation of the trial readiness rule. People v. Betancourt, 217 A.D.2d 462, 463, 629 N.Y.S.2d 423 (1st Dep't 1995). The burden is now on the people to establish that (1) they have declared their readiness for trial within the allowable time, or (2) sufficient time is excludable to permit the prosecution to continue. People v. Luperon, 85 N.Y.2d 71, 77-78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 (1995); People v. Santos, 68 N.Y.2d 859, 861 508 N.Y.S.2d 411, 501 N.E.2d 19 (1986); People v. Fields, 214 A.D.2d 332, 625 N.Y.S.2d 483 (1st Dep't 1995).

According to the record of court action and the parties' affidavits, the relevant events are as follows:

1) According to the court records the misdemeanor complaint was filed and defendant was arraigned during the evening of December 18, 1997. The people concur. Defendant insists he was arraigned December 19, 1997. Since defendant's position is more favorable to the people, for purposes of this motion the court adopts December 19, 1997, as the commencement of the action. C.P.L. § 1.20(17). The Legal Aid Society appeared for defendant at arraignment. The case was adjourned to December 23, 1997, for the people to convert the complaint to an information.

2) According to the court records, on December 23, 1997, the people filed corroborating affidavits from the complainants Agustin and April Del Valle. On this date, Robert Nerboso Esq. appeared for defendant. The court (Levitt, J.), finding that "2 counts" were converted to a triable information, evidently the assault and attempted assault of the Del Valles, adjourned the case to February 11, 1998, for the people to file the "third corrob[orating affidavit]," evidently from Eddie Rivera.

3) On February 11, 1998, according to the record of court action, the people declared their readiness for trial "on counts one and two," evidently referring to the assault counts relating to the Del Valles, although these counts were designated one and four in the accusatory instrument. The people produced no affidavit from Rivera. The court (Rakower, J.) noted that the people refused to dismiss the counts relating to the complainant Rivera, presumably the weapon and menacing charges under counts two and three of the complaint. The people claim their declaration was competent to satisfy the trial readiness rule. Upon the people's request the court adjourned the case to April 1, 1998.

4) On March 6, 1998, the people purported to declare their readiness for trial on all counts by serving on the Legal Aid Society a certificate of readiness and the corroborating affidavits of Agustin and April Del Valle and Eddie Rivera. The documents filed with the court, however, did not include the Rivera affidavit.

5) According to the record of court action, on April 1, 1998, defendant's counsel pointed out that the defense had not previously received the supporting deposition of Rivera, which the people did file and serve April 1. The court (Rakower, J.) set a schedule for defendant to file his motion to dismiss on trial readiness grounds and for the people to respond. The matter was adjourned to May 5, 1998.

In his affidavit in support of the motion to dismiss, defendant's counsel reiterates that on April 1, 1998, the people "filed for the first time the final necessary supporting deposition with the Court." He further insists that the April 1 filing was "the first date that the attorney of record had been informed of the execution of the final necessary supporting deposition." On May 5, in oral argument before the court, he added that the people had never served the certificate of readiness of March 6, 1998, on the correct defense counsel and he only received it in court on April 1 as well.

6) On May 5, 1998, the people responded to defendant's motion. Presumably referring to the Rivera affidavit, they claim that

due to a clerical error, the supporting deposition which was received by the people on March 4, 1998 did not get filed and served. It was not until the next court date that the error was brought to the People's attention. The People provided said supporting deposition on April 1, 1998. It is the People's position that because a certificate of readiness was filed and served on that date [March 6], and the supporting deposition was in the People's possession, the People should not be charged for any time after March 6, 1998.

Based on this record, the initial issue presented by the parties is whether the people's filing of the certificate of readiness and the Del Valles' supporting depositions on March 6, 1998, tolled the trial readiness time, the issue of notice aside. The people, claiming no other basis for excludable time, insist that this filing did toll the time. They do not argue that if their certificate of readiness was ineffective, it was ineffective only as to the charges concerning Rivera, and the charges concerning the Del Valles should continue. They apparently argue that their service on the Legal Aid Society also was sufficient for notice purposes. Defendant argues only that the failure to file the third supporting deposition makes the purported certificate of readiness of March 6, 1998, a nullity.

II. THE SUFFICIENCY OF THE RECORD

The people bear the burden to produce a record of proceedings sufficient to enable the court to reach "an informed decision" as to whether time is excludable. People v. Cortes, 80 N.Y.2d 201, 215-16, 590 N.Y.S.2d 9, 604 N.E.2d 71 (1992). The court has before it the record of court action in the court file and the parties' motion papers. On July 2, 1998, the court invited the parties to supplement and clarify the record and allowed ample time for the people to provide transcripts of the critical proceedings. Defendant's attorney on July 2 simply reiterated his prior statements as to the facts, and the court has received no transcripts nor further submissions since then.

Therefore the court will decide the motion based on the record currently before the court. Notations on official court documents by judges presiding on the record constitute a part of the proceedings and reflect them. A presumption of regularity attaches to these notations, like all judicial proceedings. People v. Moore, 227 A.D.2d 227, 642 N.Y.S.2d 288 (1st Dep't 1996). Where court notations corroborate the parties' sworn allegations regarding the record of court action, the court may accept the facts as established. People v. Gruden, 42 N.Y.2d 214, 218, 397 N.Y.S.2d 704, 366 N.E.2d 794 (1977); People v. Notholt, 242 A.D.2d 251, 662 N.Y.S.2d 297 (1st Dep't 1997); People v. DeLaRosa, 236 A.D.2d 280, 281, 654 N.Y.S.2d 349 (1st Dep't 1997); People v. Jackson, 225 A.D.2d 794, 795, 639 N.Y.S.2d 941 (2d Dep't 1996), aff'd after remand, 249 A.D.2d 415, 670 N.Y.S.2d 781 (2d Dep't 1998).

III. DISMISSAL OF THE CHARGES CONCERNING THE COMPLAINANT EDDIE RIVERA

The first issue is whether the people's failure to file the Rivera supporting deposition with the court before March 18, 1998, requires dismissal of the charges concerning Eddie Rivera.

Absent a waiver, a defendant has a statutory right to be prosecuted by information in any misdemeanor action. C.P.L. § 170.65(1) and (3); People v. Weinberg, 34 N.Y.2d 429, 431, 358 N.Y.S.2d 357, 315 N.E.2d 434 (1974). An information commences a criminal action only when filed with a local criminal court. C.P.L. §§ 100.05, 100.10(1). Where a supporting deposition is necessary to convert a misdemeanor complaint to an information, filing the supporting deposition with the court is a jurisdictional prerequisite to prosecution of the action. People v. Worley, 66 N.Y.2d 523, 526-27, 498 N.Y.S.2d 116, 488 N.E.2d 1228 (1985). See C.P.L. § 100.20. Although the people apparently obtained the necessary corroborating affidavit from the complainant Eddie Rivera before their trial readiness time expired, they admit they failed to file the affidavit with the court until April 1, 1998.

On March 6, 1998, the people filed a certificate of readiness with the court, but omitted to file the Rivera affidavit. They then served another copy that included the Rivera affidavit erroneously on defendant's prior counsel, the Legal Aid...