People v. Tebeje

• Decision Date: 31 May 1994
• Docket Number: AP-2
• Citation: 161 Misc.2d 440,613 N.Y.S.2d 577
• Parties: The PEOPLE of the State of New York v. Alayou TEBEJE, Defendant
• Court: New York City Court

Page 577

613 N.Y.S.2d 577

161 Misc.2d 440

The PEOPLE of the State of New York v. Alayou TEBEJE, Defendant.

Criminal Court of the City of New York,

Bronx County, Part AP-2.

May 31, 1994.

Chris M. DiLorenzo, The Legal Aid Soc., Bronx, for defendant.

Robert T. Johnson, Dist. Atty., Bronx County, Bronx (Kenneth Pryor, of counsel), for the People.

TROY K. WEBBER, Judge.

Defendant Alayou Tebeje was arraigned on September 13, 1993 upon a felony complaint charging him with Assault in the Second Degree (P.L. § 120.05[4], a class D felony, Criminal Mischief in the Third Degree (P.L. § 145.05), a class E felony, two counts of Assault in the Third Degree (P.L. § 120.00[2], class A misdemeanors and Operating a Motor Vehicle While Under the Influence of Alcohol (V.T.L. § 1192[1], an unclassified misdemeanor. On January 27, 1994, the charge of Assault in the Second Degree (P.L. § 120.05[4] was dismissed and the charge of Criminal Mischief in the Third Degree (P.L. § 145.05) was reduced to Criminal Mischief in the Fourth Degree (P.L. § 145.00).

The defendant now moves for an order: (1) dismissing the accusatory instrument on the ground that he has been denied his right to a speedy trial; (2) dismissing one count of Assault in the Third Degree (P.L. § 120.00[2] and the charge of Operating a Motor Vehicle While Under the Influence of Alcohol (V.T.L. § 1192[1] for facial insufficiency; (3) suppressing any statements allegedly made by him or, in the alternative, for a hearing thereon; (4) precluding the use of the defendant's prior criminal history or prior uncharged criminal, vicious, or immoral conduct at trial; and (5) reserving his right to make additional motions.

SPEEDY TRIAL

After careful examination and consideration of the court papers, the affirmations submitted by counsel, and the criteria set forth in C.P.L. § 30.30(4), defendant's speedy trial motion is granted for the reasons that follow.

Criminal Procedure Law § 30.30(5)(c) provides that if an action is commenced by the filing of a felony complaint and is thereafter replaced with or converted to a misdemeanor accusatory instrument charging a class A misdemeanor, the People must be ready to proceed to trial within ninety days from the filing of the new accusatory instrument or six months from the filing of the felony complaint, whichever period is less. (See, People v. Ferrara, 102 Misc.2d 253, 423 N.Y.S.2d 370 [Criminal Ct., Queens Cty. 1979].

The defendant herein was arraigned upon a felony complaint on September 13, 1993. On January 27, 1994, the felony charges were dismissed and the felony complaint was converted to a misdemeanor instrument, the top count of which is a class A misdemeanor, punishable by a term of imprisonment exceeding three months. Therefore, the People had six months from the filing of the felony complaint in which to answer ready for trial.

On January 27, 1994, the case was adjourned to March 13, 1994 for the People to file corroborating affidavits on the two counts of Assault in the Third Degree. ¹ The People were charged with all time from the commencement of the action on September 13, 1993 to January 27, 1994 and until filing and serving of the two corroborating affidavits. The case was adjourned to March 14, 1994.

On February 25, 1994, the People filed with the court and served upon the defendant a corroborating affidavit for the first count of Assault in the Third Degree ², a statement of readiness in which they stated that they were dismissing the second count of Assault in the Third Degree, and an affidavit of service for both documents. ³

Defendant alleges that the statement of readiness is invalid because the accusatory instrument was not properly converted to an information. He argues that the People cannot dismiss a count of the accusatory instrument in a statement of readiness.

A valid statement of readiness consists of two elements: (1) a communication of readiness by the People which appears on the record, and (2) an indication of "present" readiness as opposed to a prediction or expectation of readiness. People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287 (1985); People v. Caussade, 162 A.D.2d 4, 560 N.Y.S.2d 648 (1990), appeal denied, 76 N.Y.2d 984, 563 N.Y.S.2d 772, 565 N.E.2d 521 and appeal denied sub nom. 76 N.Y.2d 989, 563 N.Y.S.2d 778, 565 N.E.2d 527 (1990).

In the instant case, the People have met the first criteria for an effective statement of readiness by filing with the court the statement of readiness and an affidavit of service of such statement upon the defendant and by mailing a copy of the statement of readiness to the defendant. People v. Correa, 77 N.Y.2d 930, 569 N.Y.S.2d 601, 572 N.E.2d 42 (1991), 161 A.D.2d 391, 555 N.Y.S.2d 715 (1990); People v. Kendzia, supra.

However, the People have not met the second criteria for an effective statement of readiness by indicating their present readiness to proceed to trial at the time the statement of readiness was filed.

"Present readiness for trial is established when the People have a valid accusatory instrument upon which the defendant may be brought to trial ⁴ ..., where the People have complied with their obligation to produce for trial a defendant in their custody ... and where the People have complied with all pending proceedings required to be decided before trial can commence." People v. Caussade, supra.

This court finds that as of February 25, 1994 the accusatory instrument had not been properly converted to a legally sufficient information within the time period specified in C.P.L. § 30.30....