People v. Viken

• Decision Date: 28 February 1994
• Docket Number: AP-1
• Citation: 613 N.Y.S.2d 824,161 Misc.2d 217
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Patricia VIKEN, Defendant
• Court: New York City Court

Page 824

613 N.Y.S.2d 824

161 Misc.2d 217

The PEOPLE of the State of New York, Plaintiff, v. Patricia VIKEN, Defendant.

Criminal Court of the City of New York Queens County, AP-1.

Feb. 28, 1994.

Richard A. Brown, Dist. Atty. (Kelly Sessoms, of counsel), for the People.

Legal Aid Soc. Robert Baum (Robin Levinson, of counsel), for defendant.

JOSEPH A. GROSSO, Judge.

The defendant was originally charged in a felony complaint with Criminal Possession of Stolen Property in the fourth degree (Penal Law § 165.45) and Unauthorized Use of a Vehicle in the third degree (Penal Law § 165.05). The felony complaint was reduced to a misdemeanor complaint pursuant to CPL 180.50 on September 27, 1993 and the ninety day "speedy trial ready rule" commenced on that date (see, CPL 30.30[5][c]; People v. Ferrara, 102 Misc.2d 253, 423 N.Y.S.2d 370 [Crim.Ct., Queens Cty., 1979]. The charges were not fully corroborated until December 30, 1993, ninety-three days after reduction. The defendant now moves pursuant to CPL 170.30(1)(e) and CPL 30.30(1)(b) for an order dismissing the accusatory instrument and contending that her rights to a speedy trial have been violated. The People concede that an effective statement of readiness was not filed until more than ninety days from the reduction of the felony complaint had elapsed. However, the People contend that the period of time between October 12, 1993 and November 21, 1993, a time that a bench warrant was ordered but its execution stayed, should be excluded in computing the CPL 30.30 time notwithstanding the fact that neither a facially sufficient information nor an effective statement of readiness had been filed. There are no other factual issues in dispute.

ANALYSIS

CPL 30.30(4)(c) was amended by chapter 670 of the laws of 1984 with an intended legislative aim to overrule two Court of Appeals decisions, People v. Colon, 59 N.Y.2d 921, 466 N.Y.S.2d 319, 453 N.E.2d 548 (1983) and People v. Sturgis, 38 N.Y.2d 625, 381 N.Y.S.2d 860, 345 N.E.2d 331 (1976) (see, Preiser, Practice Commentaries, 1994 Supplementary McKinney's Cons.Laws of N.Y., CPL 30.30, at 25; see also, Preiser, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A, CPL 30.30, at 171-172). The objective was to make the period of time that a bench warrant was outstanding against a defendant excludable from CPL 30.30 ready rule computations. For nearly a decade following this amendment, trial courts debated and appellate courts were divided as to whether the due diligence requirement to secure a defendant's appearance before the court had been eliminated (compare People v. Quiles, 176 A.D.2d 164, 574 N.Y.S.2d 188 [1st Dept.1991] with People v. Bolden, 174 A.D.2d 111, 578 N.Y.S.2d 914 [2d Dept.1992]. In 1993, the Court of Appeals in People v. Bolden, 81 N.Y.2d 146, 597 N.Y.S.2d 270, 613 N.E.2d 145, held that the legislature had not achieved its aim and that prosecutors were obligated to show a due diligent effort in securing a defendant's appearance or face the penalty of having the speedy trial time charged against them during the period that a warrant was outstanding.

There are a number of reported decisions which hold that the period of time during which a bench warrant is stayed is excludable for CPL 30.30 purposes (see, e.g., People v. Medina, 198 A.D.2d 146, 603 N.Y.S.2d 858 [1st Dept.1993]; People v. Espinosa, 170 A.D.2d 309, 566 N.Y.S.2d 594 [1st Dept.1991]; People v. Fischer, 132 Misc.2d 258, 503 N.Y.S.2d 962 [Crim.Ct., N.Y.Cty., 1986]; People v. Smith, 141 Misc.2d 568, 533 N.Y.S.2d 801 [Crim.Ct., Kings Cty., 1988]; People v. Clinton, 152 Misc.2d 555, 578 N.Y.S.2d 808 [Crim.Ct., Kings Cty., 1991]. I have reviewed the above-cited cases and believe that they are factually distinguishable. The cases that dealt with either a trial ready accusatory instrument or the exercise of due diligence on a misdemeanor complaint to render the adjournments excludable.

In its most basic elements, CPL 30.30(4) in its treatment of excludable times is a "cause-effect" provision, that is, if the delay is caused by or attributable to the defendant, then the time is excludable (see, People v. Worley, 66 N.Y.2d 523, 498 N.Y.S.2d 116, 488 N.E.2d 1228 [1985]. (I note that an exception to this cause-effect analysis occurs in CPL 30.30[4][f] where a defendant is without counsel through no fault of the court. If it is the court's fault that a defendant is without counsel, the ensuing period of time is chargeable to the prosecutor [see People v. Cortes, 80 N.Y.2d 201, 590 N.Y.S.2d 9, 604 N.E.2d 71 (1992) ]. It is also clear from existing caselaw that three elements must be present simultaneously for the People to state ready for trial effectively and to stop the speedy trial clock. They are:

(1) an actual present availability of trial witnesses;

(2) a jurisdictionally sufficient accusatory instrument; and

(3) the defendant's appearance before the court or a showing of due diligence in an attempt to secure the defendant's appearance.

(see People v. Caussade, 162 A.D.2d 4, 560 N.Y.S.2d 648 [2d Dept.1990] app. den., 76 N.Y.2d 984, 563 N.Y.S.2d 772, 565 N.E.2d 521; People v. Kendzia, 64 N.Y.2d 331, 486 N.Y.S.2d 888, 476 N.E.2d 287 [1985].

In a misdemeanor prosecution, a defendant has a statutory right to be prosecuted by a misdemeanor information (see, CPL 170.65[1]. This right may be waived by a defendant and the defendant may consent to be prosecuted by a complaint (see, CPL 170.65[1]; People v. Connor, 63 N.Y.2d 11, 479 N.Y.S.2d 197, 468 N.E.2d 35 [1984]. In this case, the defendant neither expressly nor implicitly consented to be prosecuted by a misdemeanor complaint. There was no conduct which the defendant engaged in which caused the People's inability to convert the complaint into a jurisdictionally sufficient trial accusatory instrument prior to ...