People v. Santiago

• Decision Date: 26 April 1990
• Docket Number: BT-5
• Citation: 147 Misc.2d 143,555 N.Y.S.2d 569
• Parties: The PEOPLE of the State of New York, v. Jose SANTIAGO, Defendant
• Court: New York City Court

Page 569

555 N.Y.S.2d 569

147 Misc.2d 143

The PEOPLE of the State of New York, v. Jose SANTIAGO, Defendant.

Criminal Court of the City of New York New York County, Part BT-5.

April 26, 1990.

Robert M. Morgenthau, Dist. Atty., New York County (Lee F. Driscoll, of counsel), for the people.

Robert M. Baum, The Legal Aid Soc. (Paul J. Scotto, of counsel), for defendant.

JO ANN FERDINAND, Justice:

The defendant is charged with Criminally Possessing a Hypodermic Instrument (Penal Law § 220.45), a class A misdemeanor. He now moves, pursuant to CPL § 170.30(1)(e), to dismiss the information upon the ground that his right to a speedy trial under CPL § 30.30 has been denied.

The People are required to announce their readiness for trial within 90 days of the commencement of a criminal action in which a defendant has been charged with one or more class A misdemeanors. CPL § 30.30(1)(b). The defendant has alleged a delay of more than this permissible time, thus the People have the burden of demonstrating that this time is excludable. People v. Santos, 68 N.Y.2d 859, 508 N.Y.S.2d 411, 501 N.E.2d 19 (1986); People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 (1980).

The controlling issue in this case is whether the adjournment from the defendant's arraignment until the first scheduled trial date should be excluded pursuant to CPL § 30.30(4). The action commenced on December 20, 1989, when defendant was arraigned. The People filed a supporting deposition converting the accusatory instrument into an information, jurisdictionally sufficient for trial. Defendant waived motions and the case was adjourned until February 6, 1990 for trial.

It is uncontroverted that the People were not ready for trial on February 6, 1990 and March 12, 1990 and that the 52 day period from February 6 until March 30 is charged to the People.

The People contend that the initial adjournment for trial should be deemed excludable under the rationale of People v. Green, 90 A.D.2d 705, 455 N.Y.S.2d 368 (1st Dept.1982). In Green, the case had been adjourned for the submission of answering papers to defendant's motion to suppress statements and identification testimony. On the return date the court ordered Huntley and Wade hearings and the People requested an adjournment to prepare for the hearings. The court held the adjournment was reasonable and therefore excludable. The court noted that, "[t]he People could hardly be expected to be prepared for a hearing even before they were aware that the court was ordering one." Id. at 705, 455 N.Y.S.2d 368. Here the People argue that because it would be unreasonable to expect the prosecution to be ready for trial at arraignment, a portion of this initial adjournment (i.e., ten days), if not the entire 48 day period, should be excluded, as was the adjournment for the hearings in Green.

In this case, the defendant was arraigned on a jurisdictionally sufficient information and immediately thereafter waived motions. At that point the People were obligated to proceed to trial. CPL § 30.30(4) does not provide the People with a reasonable excludable adjournment to prepare for trial; rather CPL § 30.30 provides the People with 90 days of chargeable time (in the case of an A misdemeanor) to prepare for trial. While the People may not generally be expected to be ready to proceed to trial at a defendant's arraignment, there are steps they can take to toll the speedy trial period when a trial date is set at arraignment. For instance, at any time following the defendant's arraignment up until the trial date, the People could have filed and served a Certificate of Readiness thereby tolling the speedy trial time. See People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985). Thus the People's argument that this 48 day period should be excluded as a reasonable adjournment for trial is not...