People v. Simons, 2007 NY Slip Op 50425(U) (N.Y. Crim. Ct. 3/8/2007)

• Citation: 2007 NY Slip Op 50425
• Decision Date: 08 March 2007
• Docket Number: 2006NY035915.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK v. COLBY SIMONS, Defendant.
• Court: New York Criminal Court

Page 1

2007 NY Slip Op 50425(U)

THE PEOPLE OF THE STATE OF NEW YORK v. COLBY SIMONS, Defendant.

2006NY035915.

Criminal Court of the City of New York.

New York County.

Decided March 8, 2007.

The People were represented by: Michael Gates, Assistant District Attorney, New York County District Attorney's Office, New York, New York.

The Defendant was represented by: Sekeena L. Gavagan, Esq., The Legal Aid Society, New York, New York.

ANTHONY J. FERRARA, J.

The issue presented in this case is whether any portion of the initial adjournment period following a court's decision on pre-trial motions in a misdemeanor case should be excluded from the ninety day period within which the People must first assert their readiness for trial under Criminal Procedure Law § 30.30.

The Defendant is charged with menacing in the second degree (PL § 120.14[1]) and criminal possession of a weapon in the fourth degree (PL § 265.01[2]). By Motion to Dismiss, served on January 29, 2007, she has moved for an order dismissing the charges based on the People's failure to be ready for trial pursuant to Criminal Procedure Law § 30.30[1]. The People responded on March 2, 2007. To date, the People have not announced their readiness for trial, a period encompassing two hundred and six days as of December 20, 2006, when decision on this motion was reserved.

Because the most serious count the defendant is charged with is an A misdemeanor, the People were required to be ready for trial within ninety days of commencement of the criminal action, absent excludable time (CPL §30.30 [1][b]). In her motion, the Defendant argues that more than ninety days are chargeable to the People since this action was commenced on May 28, 2006. The People argue that only eighty-one days of the elapsed time are chargeable to them. Determination of this motion turns on the fifty-one day period from the date a court decided defendant's initial omnibus motion and adjourned the case for a combined Dunaway/Huntley/Wade hearing and trial. For the reasons set forth below, the Court finds that only fourteen days of this adjournment period are excludable for Criminal Procedure Law § 30.30 purposes and, as a result, more than ninety days of chargeable time has elapsed since the commencement of this action. Accordingly, Defendant's motion to dismiss is granted.

At the outset it should be noted that the People concede the forty-six days from May 28, 2006, to July 13, 2006, and the thirty-five days from November 15, 2006, until December 20, 2006, are chargeable to them. Both sides agree that the period that this motion has been before the Court, December 20, 2006, until March 8, 2007, is excluded as a reasonable period of delay resulting from the determination of pre-trial motions (CPL § 30.30[4][a]).

The parties disagree as to whether the fifty-one day period from September 25, 2006, the day that the court decided defendant's initial pre-trial motions, to November 15, 2006, the day the court adjourned the case for a Dunaway/Huntley/Wade hearing and trial, is excludable under Criminal Procedure Law 30.30. The court action sheet for November 15, 2006, the day a court rendered its oral decision, does not indicate that the People or the defense requested a definite amount of time or a particular date for hearings and trial. The current practice in the Manhattan Criminal Court is to conduct pre-trial hearings just prior to jury selection; it is also the general practice for the judge who decides defense motions and orders hearings to adjourn the case for approximately six to eight weeks due to court congestion.

The defense argues that at least thirty-seven days of the fifty-one days of this adjournment are chargeable to the People. The People respond that the entire period is excludable. Both the People and defense cite Appellate Division authority for the proposition that following an adjournment for trial, a period reasonably necessary to allow the People to prepare for trial is excludable (see People v. Green, 90 AD2d 705 [1st Dept 1982]; People v. Douglas, 156 AD2d 173 [1st Dept 1989]). Not surprisingly, the People argue that the entire adjournment period is a reasonable period to prepare for this misdemeanor trial. As is customary, the defense counters that New York City criminal courts have held two weeks to be a reasonable trial preparation period following decisions on pre-trial motions in comparatively complex misdemeanor cases (see People v. Jaswinder, 165 Misc 2d 371 [Crim Ct. New York County 1995] [finding that, without any affirmative explanation by the People for the necessity of a longer period, two weeks of the adjournment period following decision on defendant's initial omnibus motion was a reasonable time to prepare for trial on two charges of attempted assault in the third degree and leaving the scene of an accident when no hearings were ordered and charging the People with the remaining twenty-one days of the period]; People v. Curtis, 196 Misc 2d 1001 [Crim Ct. New York County 2003] [finding that two weeks of the adjournment period following the court's decision on defendant's discovery motion was excludable as a reasonable time for the People to prepare for a trial on two charges of assault in the third degree, one charge of attempted assault in the third degree and harassment in the second degree when no hearings were ordered and charging the People with the remaining forty-one days of the period]; but see People v Billups, 2005 NY Slip Op 50511U [Crim. Ct. New York County 2005] [finding the entire adjournment period from May 27, 2004, when the court ruled on defendant's pre-trial motion and granted a Huntley hearing, and July 1, 2004, when the case was adjourned for hearing and trial excludable as a reasonable time to prepare for hearing and trial]).

Neither side address the reasons for the relatively long delay (fifty-one days) between the court's decision and the date set for hearing and trial. This Court takes judicial notice of the fact that such delays are customary and are occasioned by the heavy caseloads in the all purpose parts resulting in chronic court congestion. On September 25, 2006, the sitting judge in All Purpose Part A handled one hundred and forty-two cases with future calendars exceeding one hundred cases well into November. Long adjournment dates for initial hearings and trials were at that time, and continue to be, a direct result of this congestion.

The purpose of Criminal Procedure Law § 30.30 is to promote the prompt resolution of criminal charges; it is not a speedy trial statute in the constitutional sense. Rather, the statute addresses the issue of prosecutorial readiness for trial (see People v. Anderson, 66 NY2d 52 [1985]), and requires the prosecution to be ready for trial within a reasonable time in all but the unusual case (see People v. Berkowitz, 50 NY2d 333 [1980]). A statement of readiness comprises two elements: 1) "either a statement of readiness by the prosecutor in open court, transcribed by a stenographer, or recorded by the clerk or a written notice of readiness sent by the prosecutor to both defense counsel and the appropriate court clerk and 2) the People must in fact be ready to proceed at the time they declare readiness" (People v. Kendzia, 64 NY2d 331, 337 [1985]). A motion made pursuant to Criminal Procedure Law § 30.30 must be granted where the People were not ready for trial within the statutorily required time periods (CPL § 30.30[1]).

In addressing whether court congestion is excludable for Criminal Procedure Law § 30.30 purposes, the Court of Appeals has held that any delay due to pre-readiness court congestion does not excuse the People from a timely declaration of their readiness for trial (see People v. Correa, 77 NY2d 930 [1991]; People v. Smith, 82 NY2d 676, 678 [1993]; People v. Brothers, 50 NY2d 413, 417 [1980]; People v. Stirrup, 91 NY2d 434 [1998]). In Stirrup, the People tolled the speedy trial clock by serving and filing a certificate of readiness off calendar thereby satisfying the two elements required by Kendzia (see also People v. Chavis, 91 NY2d 500, 506 [1998]). Furthermore, according to the Court of Appeals, even in the post-readiness situation, congestion and other administrative delays not occasioned by the People's own laxity, do not relieve the People of their duty to maintain trial readiness, which entails more than a mere empty assertion of readiness (see People v. Stirrup, 91 NY2d 434, 440 [1998]; citing People v. England, 84 NY2d 1, 4 [1994]; People v. Kendzia, 64 NY2d 331, 337 [1985]). In the post-readiness context, the People bear the burden of ensuring that the record explains the cause of adjournments sufficiently for a reviewing court to determine which party should properly be charged with any delay (see People v. Liotta, 79 NY2d 841, 843 [1992] [post-readiness adjournment charged to the People when they failed to clarify on the record the basis for the adjournment] ; accord, People v. Collins, 82 NY2d 177, 182 [1993]; People v. Cortes, 80 NY2d 201, 215-216 [1992]). In either pre or post-readiness posture, a properly served and filed certificate of readiness is the kind of record commitment to proceed that satisfies the People's duty to be ready for trial, and tolls the "speedy trial clock" from running for the remainder of an adjournment period (see Stirrup, 91 NY2d at 440).

Neither side cites, nor has this Court found, any appellate decision that explicitly holds that the entire adjournment period following a trial court's decision on motions is automatically excluded for Criminal Procedure Law § 30.30 purposes. To the contrary, existing appellate authority establishes that determination of the reasonable period to be excluded is case specific and varies according to the complexity of the case (see People v. Torres, 60 NY2d 119, 127-28 [1983] [remanding for a determination as to what portion of an adjournment should be charged to the defendant as a...