Category: Speedy Trial

In this New York City criminal case, the Defendant was charged by Superseding Information with Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree, in violation of VTL §511(2)(a)(ii), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, in violation of VTL 511(1)(a), and Unlicensed Driving, in violation of VTL 509(1). The accusatory instrument stated that “on March 25, 2015, the defendant was observed operating a motor vehicle in New York County. Her privilege of operating a motor vehicle had been revoked for a driving while intoxicated conviction and for a refusal to submit to a chemical test, and had not be reinstated.”

The Defendant challenges the accusatory instrument as insufficient and, therefore, the People could not have answered ready. Often times, prosecutors (even if called something else) will file an accusatory instrument based on hearsay declarations. Also, for one reason or another, a Defendant (via counsel) will waive his or her right to be prosecuted by a legally sufficient accusatory instrument. The Court states the nonhearsay requirement for a misdemeanor complaint to be converted to an information:

In order for a misdemeanor complaint to be converted to an information the factual portion of the instrument and any supporting depositions must contain “[n]on-hearsay allegations” that establish, “if true, every element of the crime charged and defendant’s commission thereof.” CPL §100.40(1)(c); People v. Alejandro, 70 NY2d 133, 135 (1987). However, the requirement that there be non-hearsay allegations in support of every element can be met where the allegation, even if not based on the declarant’s first-hand knowledge, would be admissible under “some hearsay rule exception.” People v. Casey, 95 NY2d 354, 361 (2000).

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In People v. Clark, the New York Court of Appeals throw out a first degree murder charges because the People, the prosecutor, did not act diligently in obtaining evidence.

The issue was ” whether the Appellate Division erred in holding that the People were chargeable with the period of delay of 161 days for DNA testing after having failed to exercise due diligence in seeking defendant’s DNA exemplar in order to conduct comparative testing with the DNA obtained by the Office of Chief Medical Examiner (OCME) from the gun that was the subject of weapons offenses charged in the indictment.” Id. at 1

In the end, the Court of Appeals affirmed the dismissal of the attempted first degree murder indictment on speedy trial grounds. While DNA had been recovered from the gun involved, a swab of the Defendant’s DNA was not taken until nine months after indictment:

CPL 30.30, the “so-called ‘speedy trial’ statute,” is a longstanding fixture in our State’s prosecution of criminal actions and was specifically intended “to address delays occasioned by prosecutorial inaction” (People v McKenna, 76 NY2d 59, 63 [1990]). In 1972, when the legislature enacted CPL 30.30, it was accompanied by a memorandum of the State Executive Department, Crime Control Counsel which declared “the purpose of the bill [is to] ‘promote prompt trials for defendants in criminal cases,'” noting “that ‘[t]he public, defendants and the victims of crimes all have a strong interest in the prompt trial of criminal cases'” (People v Anderson, 66 NY2d 529, 535 n 1 [1985], quoting 1972 McKinney’s Session Laws of NY, at 3259).

“Pursuant to CPL 30.30 (1)(a), the People must be ready for trial within six months of the commencement of a criminal action accusing a defendant of a felony offense” (People v Carter, 91 NY2d 795, 798 [1998]). “CPL 30.30 (4) lists the periods which are to be excluded from the computation of time within which the People are required to be ready” (McKenna, 76 NY2d at 62). CPL 30.30 (4) (g), the statutory provision at issue here, allows the exclusion of “periods of delay occasioned by exceptional circumstances” in obtaining unavailable evidence “material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence” (CPL 30.30 [4] [g]).

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The accused has the Constitutional Right to a Speedy Trial. Recently, the Supreme Court in Betterman declared the sole remedy for a speedy trial violation: dismissal. In New York State, the speedy trial right is codified in the New York Penal Law. New York State codifies that constitutional right to speedy trial and mandates the same and only remedy: dismissal.

Although a harsh remedy, New York Penal Law Section thirty sets forth certain criteria for determining when the clock starts to run and how the time is attributable to the People or the Defendant. Like the Supreme Court, The Court of Appeals recently took a case that affirms longstanding law in New York Stat: Consent to an adjournment by the Defense must be clear and unequivocal. Here the issue arises as to what occurs when the Court calendar, the People’s calendar and defense counsel’s calendar does not mesh: who is responsible for what period of time.

The Court of Appeals notes that, in this case, they are “asked to determine who is chargeable, for statutory speedy trial purposes, with each discrete time period within a pre-readiness adjournment when the People initially request an adjournment to a specific date, defense counsel is unavailable on that date and requests a later date, but the court is unavailable on the later date, resulting in an even longer adjournment.” Pp. 1-2. Issues of court congestion may have confused defendants and practitioners. Court congestion in New York State and New York City Criminal Courts have spawned long needed discussion (and potential legislation) addressing the speedy trial rule and its failure to address the People’s violations of citizens’ right to a speedy trial.

Like any good rule, there are exceptions. One such exception that is tackled here is what time should be attributable to which party when there are conflicting schedules. Defense can consent but such consent must be express. Such consent stops the speedy trial clock from running against the People’s time to answer and be ready for trial. Longstanding law is clear on the matter of defense consenting to later adjournments: People v Smith (82 NY2d 676 [1993]):

“Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel’s failure to object to the adjournment or failure to appear does not constitute consent. The adjournments at issue here were, in the first instance, precipitated by the People’s failure to be ready for trial. Other than stating that certain dates were inconvenient, defense counsel never formally consented to the adjournments and did not participate in setting the adjourned dates. Because the actual dates were set either by the court or the prosecution, no justification exists for excluding the additional adjournment time required to accommodate defense counsel’s schedule” Pp.3 (citing Smith, at 678 [internal citation omitted ]).

The Court of Appeals here, in Barden, spells it out clearly: “Smith states that counsel’s mere failure to object to an adjournment, or indication that a date requested by the People is inconvenient, is not a request or a clear expression of consent for purposes of calculating excludable time under CPL 30.30″ Pp. 3. Barden takes it one step further, however, making it clear that time allotted by the Court beyond the time requested by Defense counsel is chargable to the People: “Contrary to the People’s argument, counsel’s accommodation of the court’s schedule — merely by failing to express an objection to the alternate date proposed by the court after it indicated that the date suggested by counsel was not available — cannot, under CPL 30.30, be considered consent to the extension of the adjournment beyond March 28.” Pp. 4.  more

The crux of many complaints, it took over a year and a half for the Bronx Criminal Court to dismiss the charges against a criminal defendant on speedy trial grounds. Often confusing to both practitioners and clients, the New York speedy trial rule is codified in the Criminal Procedure Law (CPL). New York Criminal Defendants have both a constitutional right to a speedy trial as well as a statutory right to speedy trial.  Generally speaking, the issue of whether the People (New York District Attorneys) have satisfied their obligation, statutorily, under CPL §30.30 is determined by (1) “computing the time elapsed between the filing of the first accusatory instrument and the People’s declaration of readiness”; (2) “subtracting any periods of delay that are excludable under the terms of the statute”; and then (3) “adding to the result any post-readiness periods of delay that are actually attributable to the People and are ineligible for an exclusion.” People v. Cortes, 80 NY2d 201, 208 (1992).

After the people announce ready, the defendant generally has the burden of showing that adjournments should be charged to the People. See People v. Anderson, 66 NY2d 529, 541 (1985); People v. Daniels, 217 AD2d 448, 452 (1st Dep’t. 1995), Iv dismissed, 88 NY2d 917 (1996). This is often where the waters get murky and people get confused. more

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Defendants often complain that they have to keep coming back to Court and the prosecution is never ready for trial. Witnesses, evidence and sometimes the theory of the case disappears and, over time, criminal defendants answer ready for trial over and over yet no trial ever occurs. “At issue on this appeal is whether the People’s repeated declarations of unreadiness in court rendered their prior off-calendar statements of readiness illusory.” Pp. 2. New York Speedy Trial rights attach to a criminal defendant facing a crime or violation charge. While there are exceptions, a violation of New York Speedy Trial rights may entitled a defendant to move for a dismissal on these grounds alone.

A statement of readiness certifies that the People are ready to proceed to trial and, thus, tolls the “speedy trial clock” from running. People v. Stirrup, 91 NY2d 434, 440 (1998). Such a statement, while presumptively truthful and accurate, “entails more than a mere empty assertion of readiness.” Stirrup, 91 NY2d at 440. It must be a good faith, affirmative representation on the record of present and actual readiness. See People v. Kendzia, 64 NY2d 331, 337 (1985); People v. Robinson, 171 AD2d 475, 477 (1991)). While a post-readiness declaration by the People that they are not ready does not necessarily render the prior statement of readiness illusory. People v. Brown, 126 AD3d 516, 517-518 (1st Dep’t. 2015), leave granted. The Court here found that an issue remains as to what makes a prior off-calendar statement of readiness illusory. Reviewing what happened, the Court finds that:

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The Defendant here is charged with Criminal Trespass in the Second Degree (PL §140.15[1]), Criminal Trespass in the Third Degree (PL §140.10[a]), and Trespass (PL §140.05). Defendant moved pursuant to CPL §§ 170.30(1)(e) and 30.30 to dismiss the accusatory instrument on speedy trial grounds.

The case delineates the procedural history very carefully:

  • On May 14, 2015, defendant was arraigned on a misdemeanor complaint and the case was adjourned to July 6, 2015 to join. The People stated that they were ready as to all counts.
  • On July 6, 2015, the case was adjourned to August 17, 2015 for motion practice. This court directed defendant to file his motions on or before July 27, 2015.
  • On August 17, 2015, defendant filed a motion to dismiss on the grounds of facial insufficiency. The case was thereafter adjourned to November 10, 2015 for response and decision. In their papers in opposition filed on September 29, 2015, the People conceded that the accusatory instrument was facially insufficient. The People also submitted as an exhibit to their affirmation in opposition a copy of a superseding information which purportedly cured all of the defects in the original accusatory instrument. Pp. 1 (external quotation marks omitted)

The Court, somehow unaware of the speedy trial motion to dismiss, dismissed the misdemeanor informations on the basis of facial insufficiency. The People refiled the charges and the defendant moves to dismiss, again, on speedy trial grounds. The People contest the instant motion on the grounds that no time has run against the People because the People filed new charges. more