People v. Reyes
| Decision Date | 14 October 2016 |
| Docket Number | No. 2014BX002134.,2014BX002134. |
| Citation | 48 N.Y.S.3d 267 (Table) |
| Parties | The PEOPLE of the State of New York v. Paul REYES, Defendant. |
| Court | New York Criminal Court |
Darcel Clark, District Attorney, Bronx County, Bronx by Assistant District Attorney Jennifer Russell, Defendant's Attorney.
Colby Dillon, Esq., The Bronx Defenders, Bronx.
This case calls upon the court to determine whether off-calendar statements of readiness (SORs) are illusory when they are based on the purported availability of a witness with an established track record of unreliability. Under the circumstances presented here—where there have been twenty-three calendar calls and the People have only answered ready six times—the court finds that the presumption of truthfulness and accuracy has been overcome and the SORs are illusory.
The defendant is charged with Assault in the Third Degree (Penal Law [PL] § 120.00[1] ); Menacing in the Third Degree (PL § 120.15); and Harassment in the Second Degree (PL § 240.26[1] ). He has moved to dismiss the accusatory instrument pursuant to Criminal Procedure Law (CPL) § 30.30(1)(b). The defendant's motion is GRANTED.
To establish a violation under CPL § 30.30, a defendant must demonstrate the existence of a delay in excess of the statutory time period. People v. Santos, 68 N.Y.2d 859, 861 (1986). Upon meeting this burden, the burden then shifts to the People to establish that certain periods within that time period should be excluded. People v. Fields, 214 A.D.2d 332 (1st Dept 1995). The People bear the burden of clarifying, on the record, the basis for an adjournment so that a motion court can determine to whom the adjournment should be charged. People v. Cortes, 80 N.Y.2d 201, 216 (1992) ; People v. Liotta, 79 N.Y.2d 841, 841 (1992).
Where, as here, the highest count in an accusatory instrument is a class A misdemeanor, the prosecution must be ready for trial within ninety (90) days. CPL § 30.30(1)(b). The ninety days commences with the filing of the accusatory instrument. CPL § 1.20(17) ; see also People v. Stirrup, 91 N.Y.2d 434, 438 (1998).
The People are ready for trial when they either communicate their actual readiness in open court or file a SOR and serve a copy on the defendant's attorney. People v. England, 84 N.Y.2d 1 (1994) ; People v. Kendzia, 64 N.Y.2d 331 (1985). A SOR is valid when the People have removed all legal impediments to the commencement of their case. England, at 4. Once the People have announced their readiness to proceed to trial they have satisfied their obligation under the statute (People v. Giordano, 56 N.Y.2d 524 [1982] ) and are chargeable only with delay they have caused which directly implicates their ability to proceed to trial. Cortes, at 210.
Based on a review of the official court file and the submissions of the parties, the court finds as follows:
January 13, 2014–February 24, 2014
On January 13, 2014, the defendant was arraigned. The People answered ready and defense counsel waived motions. The matter was adjourned to February 24, 2014, for trial. Defense counsel contends that because the People did not answer ready again on February 24, 2014, and requested to file a SOR if and when they subsequently became ready, their declaration of readiness at arraignment was illusory. Defense counsel further contends that on multiple court dates, the People answered not ready to proceed, asked for short adjourn dates or filed certificates of readiness off-calendar, only to declare not ready at the next court appearance, demonstrating that the off-calendar statements of readiness by the People were not genuine.
For any statement of readiness to be effective, the People must (1) communicate their readiness and (2) actually be ready for trial. Kendzia, at 337. There is a presumption that such statements are accurate and truthful. People v. Acosta, 249 A.D.2d 161 (1st Dept 1998). Nevertheless, this presumption may be rebutted. Id. Generally, answering not ready on calendar calls after stating ready off-calendar may not by itself render the previous statement of readiness illusory. People v. Brown, 126 AD3d 516 (1st Dept 2015), lv granted 25 NY3d 1160 (2015) (defendant's bare contention that certificate of readiness was illusory because the People announced that they were not ready at the next court appearance insufficient to rebut the presumption that the certificate of readiness was accurate and truthful]; People v. Camillo, 279 A.D.2d 326 (1st Dept 2001) (); People v. Tavarez, 147 A.D.2d 355 (1st Dept 1989), lv denied 73 N.Y.2d 1022 (1998) (). On the other hand, repeated announcements of unreadiness in court immediately following off-calendar statements of readiness may, under certain circumstances, call into question whether the previous statements accurately reflected the People's present ability to try the case. People v. Guirola, 51 Misc.3d 13 (App Term, 2d Dept 2016) (); see generally People v. Rodriguez, 135 AD3d 587 (1st Dept 2016) (); People v. Bonilla, 94 AD3d 6633 (1st Dept 2012) ().
The seminal case addressing evaluation of the veracity of the People's readiness is People v. Sibblies, 22 NY3d 1174 (2014). In Sibblies, the People filed an off-calendar SOR and subsequently answered not ready on the adjourn date because they were "continuing to investigate and awaiting medical records." Id. at 1176. Chief Judge Lippman, writing for three judges, found that "the People must demonstrate that some exceptional fact or circumstances arose after their declaration of readiness so as to render them presently not ready for trial." Id. at 1178. He found the earlier statement of readiness illusory because the People's need to investigate did not constitute "the type of ‘exceptional fact or circumstance’ contemplated in CPL 30.30(3)(b)." Id. at 1179.
Justice Graffeo, writing for the other three judges of the Court at the time, took a narrower approach, noting:
It is well settled that a statement of readiness made at a time when the People are not actually ready is illusory and insufficient to stop the running of the speedy trial clock' (People v. England, 84 N.Y.2d 1, 4 [1994] ). We have explained that the [actual readiness] requirement will be met unless there is proof that the readiness statement did not accurately reflect the People's position' " (People v. Carter, 91 N.Y.2d 795, 799 [1998] ). Id at 1180.
The defendant points to People v. Graham, ( [Crim Ct, Bronx County, January 20, 2015, McGuire, J., docket No. 2013BX055612] ) and People v. Ramos, (45 Misc.3d 1219[A] [Crim Ct, Queens County 2014] ), cases from courts of coordinate jurisdiction. In both Graham and Ramos, the People stated ready at arraignment, but then answered "not ready" at multiple subsequent calendar calls. As a result, the Graham and Ramos courts found the People's initial declaration of readiness illusory and charged the People with time which had accrued after their initial declaration of readiness. These courts determined that a readiness statement at arraignment followed by subsequent repeated unreadiness for trial belied the People's initial statement of readiness. They reached this conclusion by "[a]nalyzing the case as a whole rather than focusing on each adjournment separately." Ramos, at 4. In Graham, the court took special note that the People did not answer ready again until almost one year after their initial statement of readiness at defendant's arraignment. Id.
Here, however, the presumption of truthfulness of the People's in-court declaration of readiness at arraignment has not been overcome. The People affirm in their response that at the time of arraignment, "the complaining witness had just been interviewed by an Assistant District Attorney and recounted her story of the defendant's [purported] criminal action." People's response at 4. The defendant was arraigned on a first party complaint, signed by the complainant in the District Attorney's Office shortly before he appeared in court. There were no apparent impediments to the People proceeding to trial at that time.
The People affirm that after the defendant's arraignment on January 13, 2014, and the adjourn date on February 24, 2014, they were unable to reach the complaining witness to notify her for trial, and as a result she did not appear. It is entirely plausible that they could have been genuinely ready to proceed to trial at arraignment and then not ready on the subsequent court date. Accordingly, the People's declaration of readiness at arraignment is deemed valid.
[0 chargeable days]
As noted, on February 24, 2014, the People answered not ready and stated that they would file a SOR if and when they became ready. The matter was adjourned to April 9, 2014 for trial. On March 6, 2014, the People filed a SOR off calendar based on "contact with the complaining witness who stated that she was available and presently ready for trial," and that the assigned assistant district attorney "was able to advise her of the next court date." People's response at 12. Defense counsel contends that this SOR is illusory because the People answered not ready on the next court date. The People contend that on March 6, 2014, the date they filed their SOR, they were in fact ready.
By the People's own admission, however, on multiple occasions throughout the long history of this case...
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