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  • Cory Morris

New York Speedy Trial Rights Violated - Pro Se Defendant Obtains Dismissal of Criminal Possession of


This case is interesting because it is brought pro se with the assistance of stand by counsel. The defendant claims that his statutory (CPL § 30.30) speedy trial trials are violated to which the Court agrees. Here, “The pro-se defendant stands charged with the offense of Criminal Possession of a Controlled Substance in the Seventh Degree, pursuant to PL § 220.03.” The pro se defendant “moves pursuant to CPL § 30.30(1)(a) to dismiss the accusatory instrument on speedy trial grounds.” The legal standard is as follows:

In general, the People must be ready for trial within six months for felony cases, 90 days for cases in which the most serious charge is a class A misdemeanor, 60 days for cases in which the most serious charge is a class B misdemeanor, and 30 days for cases in which only a violation is charged (CPL § 30.30[(1]). As in this case, where a felony complaint is replaced with or converted to an information or a misdemeanor complaint, provides that:

... the period applicable for the purposes of subdivision one must be the period applicable to the charges in the new accusatory instrument, calculated from the date of the filing of such new accusatory instrument; provided, however, that when the aggregate of such period and the period of time, excluding the periods provided in subdivision four, already elapsed from the date of the filing of the felony complaint to the date of the filing of the new accusatory instrument exceeds six months, the period applicable to the charges in the felony complaint must remain applicable and continue as if the new accusatory instrument had not been filed.

The matter was converted from a felony to a misdemeanor yet the above (CPL § 30.30(5)(c)) time-frame applies. Here, the Court makes the regular speedy trial analysis. New York Speedy Trial cases seem to focus on the exception or exemption more than the days it takes to bring a matter to trial. Often confusing for Defendants (aside from this one), is the fact that ninety (90) days or one-hundred eighty days (180) is not as straightforward as a simple counting of the days until close. The procedural posture in New York changes once there is a statement of readiness. A statement of readiness can be deemed illusory under certain circumstances and often times there are exceptions which excuses the People from not being ready, such as court congestion. Another interesting thing that happens is when the Defendant is not produced and his appearance is "waived" - what about the Defendant's right to be present at all court appearances?:

“It is clearly established that if the defendant is in custody on another matter, then the People must show due diligence (People v Knight, 163 AD2d 583 [2d Dept. 1990][holding that "entire period of delay which was attributable to People's failure to produce defendant from prison was not excludable under speedy trial rule"]); People v Williams, 40 Misc 3d 1233A[Sup. Ct. Bronx County 2013][an adjournment may be excluded if the People exercise due diligence to locate and attempt to produce a defendant detained within the same jurisdiction"]). Here, the defendant was not at a location unknown to the People since he was under the control of the authorities in the same jurisdiction for at least forty-five days before being transferred to a state facility for eight days. The Court agrees with the defendant that the People had an obligation to exercise diligence in executing the October 9, 2015 bench warrant. The People failed to address what actions if any were taken after the bench warrant was issued, therefore the delay of fifty-seven days between issuance of bench warrant for defendant's arrest and date efforts to execute warrant were initiated are charged to the People.”

Then the New York Speedy Trial day counting begins. Some important highlights in this case is that “On August 27, 2014, the brief record reflects that the defendant asked if there was a lab report, and the People stated "no", and the case was adjourned to October 1, 2014 for a lab only felony hearing. The People filed the lab report on the adjourned date. The thirty five days from August 27, 2014 to October 1, 2014 will be chargeable to the People.” Although ready, there was no lab report - the People had not done all that was required to bring the matter to trial and therefore were not ready.

Another important highlight which counts against the People for the purposes of New York Speedy Trial time is that “On October 8, 2014 the defendant was not produced from the Westchester County Jail and the case was adjourned to October 16, 2014. No explanation from the People is stated in their opposition to the defendant's motion. Therefore, eight days are chargeable to the People.” As noted above, because the Defendant was in the People's custody, it was their obligation to produce the Defendant for trial. "Scratching" (Defendant refuses or cannot come to Court), or waiving the Defendant's appearance where no knowing and voluntarily waiver of such a right occurs, sometimes muddies this water and will count against the Defendant for New York Speedy Trial purposes.

In calculating the total amount of time, the Court notes than one-hundred and eighty four (184) days have passed and count against the People albeit there is over two-hundred (200) days of excludable time in this matter. The case must be dismissed.

New York Speedy Trial Rights (Statutory) and Constitutional Speedy Trial rights usually fall to the wayside without an experienced advocate. The Defendant Pro Se secures a dismissal on what appears to be over a year of time spent fighting these charges, the bulk if not all of which were spent incarcerated. Should you or a loved one find yourself in need of a criminal defense attorney, call the Law Offices of Cory H. Morris (631-450-2515 | 954-998-2918).

The case is People v. ACKRIDGE, 2017 NY Slip Op 50780 - NY: City Court 2017 (Westchester June 12, 2017)


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