People v. Robinson

• Decision Date: 10 March 1989
• Citation: 143 Misc.2d 163,539 N.Y.S.2d 852
• Parties: The PEOPLE of the State of New York, v. Marsiell ROBINSON, Defendant.
• Court: New York Supreme Court

Page 852

539 N.Y.S.2d 852

143 Misc.2d 163

The PEOPLE of the State of New York, v. Marsiell ROBINSON, Defendant.

Supreme Court, Bronx County,

Criminal Term Part 46.

March 10, 1989.

Robert T. Johnson, Dist. Atty. Russell Paisley, Asst. Dist. Atty., Bronx, for the People.

Thomas P. Cullen, Woodside, for defendant.

PHYLIS SKLOOT BAMBERGER, Justice:

Defendant was arrested on September 2, 1987, on a felony complaint charging attempted murder. The People were requir to be ready for trial by March 2, 1988, or 182 days. People v. Osgood, 52 N.Y.2d 37, 436 N.Y.S.2d 213, 417 N.E.2d 507 (1980). The defense, pursuant to C.P.L. §§ 30.30 and 210.20, by motion of January 30, 1989, sought dismissal of the subsequently filed indictment which charged the defendant with attempted murder in the second degree, assault in the second degree, criminal possession of a weapon and reckless endangerment. Before the motion was filed, at discussions in the courtroom, the parties agreed about what had occurred on all dates but three and the transcripts were ordered for those three dates. After the motion was filed the prosecutor filed response papers, including two affirmations from the assistant district attorneys who had previously handled the case.

This Court found that no hearing was necessary. People v. Gruden, 42 N.Y.2d 214, 397 N.Y.S.2d 704, 366 N.E.2d 794 (1977). The prosecutors' affirmations presented undisputed factual admissions which established that notices of readiness were inaccurate and consequently supported the defense claim that more than six months of includable time transpired. This Court found 302 days against the State. On February 23, 1989, the indictment was dismissed. This opinion sets out the findings and conclusions of the Court.

1. Going Behind the Notice of Readiness

Motions to dismiss pursuant to C.P.L. § 30.30 are almost always resolved by examining a case for subsection 4 excludable periods, or for section 3(b) exceptional circumstances justifying the State's delay after a notice of readiness is filed. ¹ See People v. Anderson, 66 N.Y.2d 529, 535-37, 498 N.Y.S.2d 119, 488 N.E.2d 1231 (1985). An issue only rarely considered is the accuracy of the notice that the prosecution is ready for trial. Nevertheless, there is judicial precedent for going behind the notice. In People v. Dean, 45 N.Y.2d 651, 656, 412 N.Y.S.2d 353, 384 N.E.2d 1277 (1978), where the Court of Appeals decided there were sufficient excludable periods to deny a motion to dismiss, the Court wrote that an inaccurate statement of readiness would make the statute a mockery.

In People v. Howe, 116 A.D.2d 990, 991, 498 N.Y.S.2d 1013 (4th Dept.), lv. denied, 67 N.Y.2d 885, 501 N.Y.S.2d 1036, 492 N.E.2d 1243 (1986), the concurring judge wrote:

"It is not enough for the People to simply state on the record their readiness for trial; they must also be able to substantiate such an assertion.

See People v. Hargro, App.Div., 534 N.Y.S.2d 274 (4th Dept.1988); People v. Filim, N.Y.L.J. August 23, 1984, p. 12, col. 2 (App. Term 2d Dept.) ² ; People v. Jones, 126 Misc.2d 919, 484 N.Y.S.2d 415 (Crim.Ct. New York Cty.1984); People v. Richberg, 125 Misc.2d 975, 980, 481 N.Y.S.2d 237 (Crim.Ct. New York Cty.1984). This Court accepts as sound the principle that when circumstances raise questions about the accuracy of the notice of readiness, the purpose of the statute will be undermined if the Court does not go behind the notice to determine the status of the prosecution's case at the time the notice was filed. Inaccurate statements of readiness would mislead the Court. Uncritical judicial acceptance of inaccurate notices would encourage delays in the preparation and investigation of cases. The delays would undermine the purpose of the statute, which was to promote prosecutorial readiness to proceed. It would undermine the prosecutor's obligation to the community to prosecute those cases it considers important and dismiss those it cannot continue. ³

2. The Meaning of "Ready"

Going behind the notice necessitates a standard for the examination. The statute requires that the People be ready for trial in a felony case within six months of the commencement of the action. C.P.L. § 30.30(1)(a). The Court of Appeals has provided guidance about the meaning of readiness. A notice must be effective. People v. Brothers, 50 N.Y.2d 413, 417, 429 N.Y.S.2d 558, 407 N.E.2d 405 (1980). The People must be "prepared for trial." People v. Berkowitz, 50 N.Y.2d 333, 349, 428 N.Y.S.2d 927, 406 N.E.2d 783 (1980). A subsequent notice of prior readiness is inadequate (People v. Hamilton, 46 N.Y.2d 932, 415 N.Y.S.2d 208, 388 N.E.2d 345 (1979)) and a notice cannot anticipate future readiness. People v. Kendzia, 64 N.Y.2d 331, 337, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985).

These precedents reflect the legislative history of C.P.L. § 30.30. The statute was "patterned after the speedy trial rules of the United States Court of Appeals for the Second Circuit." (1972 New York State Legislative Annual at 7 (Governor's Memorandum)), which were in effect between July 5, 1971, and April 1, 1973. ⁴ Rule 4 of the Second Circuit Rules required the government to be ready for trial within six months of one of several specified events. The rules focused on "prevention of prosecutorial delay" and were "designed to require the government to be ready to try cases promptly, subject to certain types of delay generally recognized as arising from legitimate or unavoidable causes." If the government was not ready within the six months, excluding the specific exceptions, the indictment was dismissed with prejudice. Hilbert v. Dooling, 476 F.2d 355, 357 (2d Cir. en banc), cert. denied, 414 U.S. 878, 94 S.Ct. 56, 38 L.Ed.2d 123 (1973). To announce the government's ready status to the Court and the defense, some notice of readiness was required. U.S. v. Scafo, 480 F.2d 1312, 1318 (2d Cir.), cert. denied, 414 U.S. 1012, 94 S.Ct. 378, 38 L.Ed.2d 251 (1973).

The Court of Appeals decisions and the legislative history mean that the required notice of readiness cannot be a mere formality. It must accurately reflect the status of a prosecutor's case. When Kendzia describes the "actions the People must take to indicate readiness" (64 N.Y.2d at 335, 486 N.Y.S.2d 888, 476 N.E.2d 287), the Court is not asking for an empty proclamation, but one which sets out for the Court and the defense that the State is prepared to go ahead with the trial. These precedents require two components for effective readiness: the ability to present the State's direct case and the ability to make that presentation immediately. When the prosecutor announces ready, the prosecutor must expect that the trial of the case will begin immediately before the judge to whom the notice is given or any other available court.

Whether information in existence but unknown to a prosecutor at the time notice is given, or whether the need to put police witnesses on call, or whether some other circumstance is significant to the issues of preparedness or immediacy will have to be determined in other cases. In this case, no such questions are raised. The State's response to the motion to dismiss makes it clear that the prosecutors were not able to present the case immediately and had no basis for believing that they would be able to do so.

3. Findings

The defendant was arrested on September 2, 1987. The indictment was filed on September 11, 1987, and the arraingment took place on September 28, 1987. This period is excluded as a reasonable period for indictment and arraignment. People v. Baker, 131 A.D.2d 491, 492, 516 N.Y.S.2d 106 (2d Dept.), lv. denied, 70 N.Y.2d 709, 519 N.Y.S.2d 1043, 513 N.E.2d 1311 (1987).

On September 28, 1987, the People announced ready and the case was adjourned to October 7, 1987; on October 7, 1987, again the People announced ready and the case was adjourned to November 2, 1987. On November 2, 1987, the case was adjourned to December 2, 1987, again after an announcement of readiness. The prosecutors' affirmations in response to the motion to dismiss, which this Court accepts as true, provide a different story of the status of the case. A prosecutor was assigned to this case "sometime in 1987" and "at or about September 1987" the complaining witness said he wanted to cooperate in the trial and supplied his "information and alternate contacts" should it become necessary to try the indictment. There is no assertion that in the period from the initial communication sometime in September to November 2, 1987, the complainant was ever contacted or that the prosecutor knew whether he would testify. There was only an assumption of continuing interest. Further, nothing was known about the witness' availability. There is no assertion that the prosecutor knew how to reach the witness directly or when the witness would be available to appear. The representation of readiness was inaccurate. The time between September 28, 1987, and December 2, 1987, 65 days, is charged against the People.

On December 2, 1987, the case was adjourned for motions until December 14, 1987, and again for the same reason until February 1, 1988. This period is excluded. C.P.L. § 30.30(4)(a).

On February 1, 1988, the prosecutor again announced ready, and the case was adjourned to April 4, 1988. Based on the prosecutor's affirmation, this Court finds there was a change of prosecutor in either late January or early February, 1988. The second newly designated prosecutor contacted the complaining witness' uncle and father in March, 1988, and were told both the complaining witness and another witness resided at the addresses originally given. At an unspecified date in April, 1988, the prosecutor sent a detective to look for both witnesses. The detective spoke with complaining witness's mother, who said both witnesses wanted to cooperate. The Court finds the declaration of readiness to be inaccurate. The People were not ready for trial on February 1, 1988. Neither the...