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Speedy Trial Violation - Assault Indictment Dismissed

Weapon Charges, Pistol Whipping, Dismissed because of Speedy Trial Violations. New York Criminal Defense Attorneys know and this case highlights why Criminal Attorneys must file motions seeking dismissal of charges when appropriate.

Here, in People v. Taback, Defendant MICHAEL TABACK is charged by Indictment Number 2021-210 with one count of Assault in the First Degree pursuant to Penal Law [PL] §120.10 (1) [First Count] and one count of Assault in the Second Degree pursuant to PL §120.05 (2) [Second Count]. Because the People of the State of New York are not timely ready, the charges, supported by an indictment, are dismissed against the Criminal Defendant.

The case is dismissed but, as the Court notes, the charges are quite serious: "pertain to Defendant’s alleged shooting and pistol whipping of an individual at approximately 11:23 p.m. on October 16, 2020, in the vicinity of the Golden Rail Ale House, located at 29 Old North Plank Road in the Town of Newburgh."

On July 6, 2021, Defendant was arraigned by this Court on the charges contained in Indictment Number 2021-210 and the Court acknowledged receipt of the People’s Statement of Readiness which has, inter alia, a Notice and Disclosure Form, a Certificate of Compliance dated July 6, 2021, a three-page Index and twenty-three “Compliance Report for Discovery Package” pages identifying items and materials that were provided and made available to defense counsel, and three “eDiscovery Instructions” pages attached thereto.

The Criminal Defense Attorney argued for dismissal of the indictment on the ground that the defendant’s right to a speedy trial pursuant to CPL §§210.20 (1) (g) and 30.30 (1) (a) was violated. What this boils down to is whether the People of the State of New York complied with the law in prosecuting the accused. It does not matter whether the allegations are egregious, it does not matter that the Defendant possessed a gun or discharged a firearm but what matters is that the People of the State of New York did not do what it was complied to do in pursuing criminal charges. The Court cites the appropriate law relevant to this matter:

“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. Clarke, 28 NY3d 48, 52 [2016], quoting People v. Carter, 91 NY2d 795, 798 [1998]...CPL §30.30 (4)).
“The failure to declare readiness within the statutory time limit will result in dismissal of the prosecution, unless the People can demonstrate that certain time periods should be excluded” (People v. Brown, 28 NY3d 392, 403 [2016], quoting People v. Price, 14 NY3d 61, 63 [2010]). “Whether the People have satisfied [their] obligation is generally determined by computing the time elapsed between the [commencement of the criminal action] and the People’s declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion” (People v. Cortes, 80 NY2d 201, 208 [1992]; see People v. Carter, 91 NY2d at 799; People v. Clinkscales, 171 AD3d at 1087; People v. Huger, 167 AD3d at 1042: People v. Lynch, 103 AD3d 919, 920 [2d Dept 2013], lv. denied 21 NY3d 1017 [2013]; People v. Headley, 100 AD3d 775, 776 [2d Dept 2012]).

The People are required, in the case of a felony, to be ready for trial within one hundred and eighty days (180) or the accused's statutory speedy trial rights would be violated. Interesting is that during the case "The suspension of CPL §30.30 and the tolling of its speedy trial calculations remained in effect through a series of Executive Order extensions until October 4, 2020, when they were lifted with the Governor’s issuance of Executive Order 202.67," due to the COVID-19 pandemic. Still, however, the Court must perform an elaborate but not so complex evaluate to calculate the statutory speedy trial time... "118 days have been charged to the People...and as they were required to announce their readiness within 182 days of October 17, 2020, the People’s delay in doing so, barring excludable delay, must not exceed 64 days;" However, "the People have not provided the Court with any information as to why it was “necessary” for the time period of December 30, 2020 through May 23, 2021 to be tolled [and] as there were no “necessary” excludable time periods from December 30, 2020 through May 23, 2021, the People are charged with the 144 days thereof" giving a grand total of "262 days elapsed between the commencement of the criminal action against the defendant and the People’s declaration of readiness, in contravention of the 182 days permitted by CPL §30.30 in this case." Case Dismissed The case is People v. Taback, and the Court concludes that "there are no discernible periods of delay that are excludable under the terms of that statute, Defendant’s motion to dismiss Indictment 2021-210 on the ground that he was denied of his right to a speedy trial is granted."

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

Call 631-450-2515 or E-Mail to arrange for an evaluation of your criminal defense, appellate matter or for assistance in filing a criminal defense motion.


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