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 ). 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 , 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 ). “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  [g]).
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 ):
“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
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:
The Defendant here is charged with Criminal Trespass in the Second Degree (PL §140.15), 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:
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
Clark said in a statement she would create an internal task force trained in the jail’s procedures and station a prosecutor at the facility. She also said she would ask the Office of Court Administration to put a judge there to speed up arraignments and other proceedings.
Outgoing DA Robert Johnson has been faulted for declining to write up new felony arrest complaints against inmates. Instead, he was concentrating on reducing a backlog that Bronx DA public information director Terry Raskyn on Monday said has been eliminated.
Clark said the office needed to work together with city agencies and that she would request “adequate funding” from the City Council for Rikers cases.
She called for bail reform for low-level, nonviolent offenders as well as improved information sharing with the city’s other district attorneys.
Clark said she would “demand and expect that my office will be prepared to achieve real-time prosecution on every case possible, and I look forward to working with all the stakeholders to bring safety and the rule of law to Rikers Island.”
These reforms are long overdue as the story of Kalief Browder has proliferated throughout New York:
In this case “[i]t is…undisputed that the remaining eleven months that the motion was pending were not excluded. Accordingly, the Act’s 70‐day indictment‐to‐trial period (commonly referred to as the “speedy trial clock”) was exceeded by approximately nine months.” Bert, at P. 8. “Accordingly, neither party contests that a violation of the Speedy Trial Act occurred. Nor do they question the statute’s unambiguous mandate that the court was required to dismiss the indictment upon Bert’s motion. The only question before us, therefore, is whether the district court abused its discretion in permitting Bert’s reprosecution by dismissing the indictment without prejudice.” P. 8-9.
“The Speedy Trial Act mandates that a criminal defendant must be brought to trial within 70 days of the filing of the indictment or the defendant’s initial appearance, whichever occurs later. See 18 U.S.C. § 3161(c)(1). If that deadline is not met, the Act provides that the indictment “shall be dismissed on motion of the defendant.” 18 U.S.C. § 3162(a)(2). The Act excludes delays due to certain enumerated events from the 70‐day indictment‐to‐trial period. See 18 U.S.C. § 3161(h).” P. 7
“It is well established that “Congress did not intend any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act violation.” United States v. Taylor, 487 U.S. 326, 334 (1988); accord United States v. Caparella, 716 F.2d 976, 980 (2d Cir. 1983). Rather, “[t]he determination of whether to dismiss an indictment with or without prejudice is committed to the discretion of the district court.” United States v. Wilson, 11 F.3d 346, 352 (2d Cir. 1993).” P. 9. In making this consideration the Court should consider “the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.” United States v. Bert, 13-2328-cr, at * 10 (Sept. 10, 2015)(quoting 18 U.S.C. § 3162(a)(2)).
The Supreme Court instructed that, in the absence of prejudice or significant delay, courts should only preclude reprosecution of a serious crime upon a showing of “something more than an isolated unwitting violation,” such as a finding of “bad faith” or a “pattern of neglect.” Taylor, 487 U.S. at 339. But where the delay is indisputably grave and not a result of the defendant’s own conduct, Taylor, 487 U.S. at 343, dismissal with prejudice may be appropriate without such a finding, see United States v. Russo, 741 F.2d 1264, 1268 (11th Cir. 1984) (“[W]here the violation is substantial, a negligent failure to comply with the Act will not suffice to justify retrial.”). As the Supreme Court has explained in the context of a Sixth Amendment speedy trial challenge, “[a]lthough negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.” Doggett v. United States, 505 U.S. 647, 657 (1992). “‘The Act controls the conduct of the parties and the court itself during criminal pretrial proceedings. Not only must the court police the behavior of the prosecutor and the defense counsel, it must also police itself.’” Stayton, 791 F.2d at 20 (quoting Pringle, 751 F.2d at 429).
The District Court committed error in that “first, that the absence of bad faith, intentional delay, or some other form of heightened scienter is dispositive of this statutory factor; second, that a delay attributable to the court and not to the government tips this factor in favor of dismissal without prejudice. Both of these premises are contrary to governing precedent.” P. 16-17. The Second Circuit held that “[a] rule that limited the sanction of dismissal with prejudice exclusively to cases involving bad faith would contravene the well‐established principle that “[t]he Speedy Trial Act does not indicate a preference as between dismissals with and dismissals without prejudice.” Giambrone, 920 F.2d at 180 (citing Taylor, 487 U.S. at 334).” P. 18. Indeed, “District courts must hold themselves accountable for ensuring their own compliance with the Speedy Trial Act’s requirements. A district court may not merely assume responsibility for a speedy trial violation, deny an improper motive, and weigh this statutory factor in favor of dismissal without prejudice without offering further explanation.” Bert, at P. 19. In “the seriousness of the violation was ‘slighted’ and not ‘properly considered,’ Taylor, 487 U.S. at 337, and we proceed to a fuller examination.” P. 14. “Bert’s speedy trial clock had been expired for 266 days (almost 9 months). It is beyond cavil that this delay—which amounts to almost nine times the period of time automatically excluded for the resolution of such motions, see 18 U.S.C. § 3161(h)(1)(H), and almost four times the length of the speedy trial clock itself, see 18 U.S.C. § 3161(c)(1)—is serious” Bert, at P. 14
Conclusion: “Given the extended administrative neglect by the court and the government in allowing the case to stagnate for almost a year while Bert was incarcerated, we conclude that the government’s interest in administering justice by prosecuting Bert’s firearms offenses is outweighed by the impact that permitting reprosecution would have on the administration of justice and of the Speedy Trial Act.” P. 31
Dissent by Hon. Dennis Jacobs
Finding that “The only issue presented is whether the district court had discretion to dismiss this case under the Speedy Trial Act (as it did) without prejudice,” Judge Jacobs would have joined the majority. “The delay was occasioned by a one‐year interval in which the district court considered a suppression motion that was complicated, ramified, and virtually outcome‐determinative.”
Judge Jacobs cites several principles of which militate against dismissal with prejudice:
(1) As between dismissal with prejudice and without, “neither remedy [is to be] given priority,” United States v. Taylor, 487 U.S. 326, 335 (1988);
(2) “[d]ismissal without prejudice is not a toothless sanction,” id. at 342; and
(3) “dismissal of a criminal indictment is a drastic remedy which should not be lightly considered,” United States v. Fox, 788 F.2d 905, 909 (2d Cir. 1986).
Judge Jacobs states that “I agree with the majority that the Act serves important ends and must be enforced, and that it is integral to the administration of justice. But the majority implicitly assumes that the Act is disserved or impaired unless dismissal is with prejudice; and that assumption violates the background principles that dismissal without prejudice is not toothless, that the Act embodies no preference as to whether dismissal should be with prejudice or without, and that the choice is confided to the discretion of the district court.” In sum, he does not agree with the remedy the Second Circuit chose because “the delay [of the District Court] was an isolated instance; there was no bad faith or pattern of delay or misconduct by the prosecutors, or by the judge, or by the court as a whole; and, under the circumstances, no incentive for abuse can be identified, let alone be said to arise…” and, accordingly, he felt that the District Court’s judgment should be affirmed.
The case is United States v. Bert, 13-2328-cr (Sept. 10, 2015).