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People denied the Defendant his Right to a Speedy Trial – Criminal Charges Dismissed

The defendant was charged with Assault in the Third Degree, Attempted Assault in the Third Degree, and Harassment in the Second Degree. After delay, he moved to dismiss the criminal action against him on the ground that he has been denied his statutory right to a speedy trial, arguing that, despite the People's off-calendar Notice of Readiness, they in fact were not ready to proceed and that therefore they are chargeable with more than ninety (90) days since his arraignment. Defendant was arraigned on October 10, 2013; the people announced not ready on October 29, 2013; time passed and the people announced they were not ready to proceed for trial on January 13, 2014 and the Court adjourned to March 6, 2014; people again announced they were unready and the Court adjourned until April 15, 2014 for trial; on April 15, 2014 the people again announced that they were not ready and the Court adjourned the matter to May 29, 2014 – Defendant filed a motion alleging that the people’s failure to be ready for trial should warrant the dismissal of the

Law: Pursuant to CPL §30.30(1)(b), the People must be ready for trial within ninety (90) days of commencement of a criminal action charging a defendant with a misdemeanor punishable by a sentence of imprisonment of more than three months. Although a criminal action commences when the accusatory instrument is filed, counting for speedy trial purposes starts the following day (see People v. Stiles, 70 NY2d 765 [1987]). Whether the People have satisfied their obligation to be ready under CPL 30.30 is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional periods of post-readiness delay which are attributable to the People and ineligible for any exclusions under the statute (see People v. Cortes, 80 NY2d 201 [1992]).

Readiness for trial "is not an empty declaration that the People are prepared to present their direct case" (People v. England, 84 NY2d 1, 4 [1994]). Rather, trial readiness means that the "the People have done all that is required of them to bring the case to a point where it may be tried" (id.). Thus, to be ready for trial the People must have a valid accusatory instrument, have complied with their obligation to produce the defendant and have complied with all pretrial proceedings (see People v. Caussade, 162 AD2d 4, 8 [2d Dept 1990])….The People "must in fact be ready to proceed" when they announce ready for trial (People v. Chavis, 91 NY2d 500, 505 [1998]). A statement of readiness made "at a time when the People are not actually ready is illusory" (England, 84 NY2d at 4). The People's statement of readiness is presumed to be accurate and truthful unless there is proof that it does not accurately reflect their position (see People v. Sibblies, 22 NY3d 1174, 1180 [2014] [Graffeo, J., concurring]).

Analysis: While the People are entitled to declare their readiness on a valid accusatory instrument, they must be prepared to go forward with the evidence in their possession at that time (see People v. Wright, 50 AD3d 429, 430 [1st Dept 2008]). If they subsequently request an adjournment to obtain additional evidence in order to be ready for trial, their initial statement of readiness is illusory unless the record supports the inference that "'the People made an initial strategic decision to proceed, if necessary, with a minimal prima facie case but later determined to present additional evidence'" (Sibblies, 22 NY3d at 1181 [Graffeo, J., concurring], quoting People v. Bonilla, 94 AD3d 633 [1st Dept 2012]).

In so holding, the Court reasoned that “Record support for such an inference encompasses more than the People's bare assertion that they once were willing to go forward without the additional evidence but now are not. Indeed, to accept such a transparent excuse for the People's unreadiness would nullify the force and effect of Sibblies, supra. Rather, such support might be an averment that the People just discovered the existence of additional evidence which they wish to obtain to strengthen their case, or that they have lost control of a material witness, requiring that they secure other evidence to be able to go forward.”

The Court found that the people’s action in filing a Domestic Incident Report instead of a supporting deposition suggests that the complainant was either unavailable or uncooperative and that the people were never ready to go forward without a 911 recording. Citing that the people’s failure to obtain the 911 recording being the underlying reason, the Court found the 231 days elapsed where people were not ready to proceed violated the Defendants’ speedy trial rights.

The case is People v. Mortoza, 2013QN056182, NYLJ 1202671448377, at *1 (Crim., QU, Decided September 18, 2014).

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