New York Criminal Practice: CPL 30.30 Considerations

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:CPL 30.30 SPEEDY TRIAL CONSIDERATIONS: LET ME COUNT THE DAYS

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CPL 30.30 SPEEDY TRIAL CONSIDERATIONS: LET ME COUNT THE DAYS


NEW YORK CPL 30.30 PUNISHES DELAY: IF THE PEOPLE ARE NOT READY FOR TRIAL WITHIN THE LEGAL TIME ALLOTTED FOR THE CRIMES CHARGED, THE CRIMINAL CASE CAN BE DISMISSED.

THE CRIMINAL PROCEDURE LAW 30.30 SPEEDY TRIAL MANDATE IS NOT A TECHNICALITY USED TO PUT CRIMINALS BACK OUT ON THE STREET – IT IS PROTECTION PROVIDED BY THE NY LEGISLATURE TO ALL NEW YORKERS

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IF YOU DO NOT BELIEVE THAT ALL PEOPLE, NO MATTER HOW REVOLTING THE CRIME, ARE ENTITLED TO THE RIGHTS PROVIDED BY 30.30, YOU MUST NOT CONTINUE TAKING CRIMINAL DEFENSE CASES.

IF YOU DO NOT COUNT EVERY SINGLE DAY CHARGEABLE TO THE PROSECUTION FROM THE MOMENT YOUR CLIENT IS ARRAIGNED, YOU MUST BEGIN THAT PRACTICE NOW. HERE IS HOW:


6 Months/90 days/30 Days

1. The case can be dismissed if the People are not ready within 6 months of commencing an action where the highest charge is a felony

2. 90 days where the highest charge is misdemeanor punishable by more than 3 months imprisonment;

3. 60 days where the highest charge is a misdemeanor punishable by not more than 3 months imprisonment and

4. 30 days where the most serious offense is a violation.

CPL §30.30, subd. 1.

A criminal action commences with the filing ofan accusatory instrument against a defendant. The first day of calculation begins the day after the initial filing. CPL §1.20, subd. 16 and 17

When a defendant receives a desk appearance ticket (DAT), the time begins with first court appearance.


STARTING THE 30.30 CLOCK

THE FIRST DAY AFTER ARRAIGNMENT BEGINS THE COUNT.

THE CALCULATION IS DONE FROM ADJOURNMENT TO ADJOURNMENT .

THE UPCOMING APPEARANCE DATE IS INCLUDED IN EACH PERIOD.

EXAMPLE:

June 2 – arraignment.June 3 – calculation beginsJune 9 – adjourned date

7 Days charged to the prosecution


STOPPING THE 30.30 CLOCKTHE PROSECUTION CAN STOP THE CLOCK SIMPLY BY BEING READY FOR TRIAL.

TO BE READY, THE PEOPLE MUST

(1) DECLARE IN OPEN COURT THAT THEY ARE READY OR FILE AN OFF-CALENDAR CERTIFICATE OF READINESS AND SERVE IT ON DEFENSE COUNSEL; AND,

(2) IN FACT BE READY TO PROCEED AT THE TIME THEY DECLARE READINESS.

Where the People file an off-calendar certificate of readiness and subsequently declare at the next court appearancethat they are not ready, a defendant understandably may be perturbed by the People's prior claim of readiness. Thedefendant can challenge the propriety of the declarations.

People v Marsha Sibblies


EVENTS THAT CANNOT BE CHARGED TO THE PROSECUTION -- CPL §30.30, subd. 4* competency determinations,discovery, motion practice.* adjournments requested or consented to by thedefendant. (Silence by the defense is not consent). *absences caused by the defendant while attempting to avoid apprehension or prosecution.* delay when the defendant isjoined for trial with another defendant whose speedy trial time has not run*Where the case is adjourned for the defendant to hire private counsel* exceptional circumstances such as areasonable continuance needed by the prosecution to obtain the presence of a witness


POST-READY DELAYS BY THE PROSECUTION CPL §30.30, subd. 3(b)Once the People are ready, their request for delays may be chargeable only for of the number of days they specify and not for any further time the court may adjourn the case.

If defense counsel actively participates in setting an adjournment date when the People are not ready it could be found excludable. But indicating to the court that certain dates are bad are not considered consent.

Time for defendants to consider plea offers has been found excludable. The time following such an adjournment has also been held excludable.

ALL OF THE EXCLUDABLE PERIODS ARE BASED ON REASONABLENESS AND EXCESSIVE DELAY MAY STILL BE CHARGED AT THE DISCRETION OF THE COURT. People v. Daley


DUE DILIGENCE PROCEDURE FOR 30.30 DETERMINATION IF YOU BELIEVE THE TIME PERIOD IS CLOSE, CONTACT THE ASSIGNED PROSECUTOR. AFTER INTRODUCING YOURSELF, ASK THE FOLLOWING QUESTION: “HEY, ARE YOU CONCEDING 30.30 ON THIS FILE?” AT BEST THEY MAY CONCEDE AND YOUR WORK IS ALMOST DONE. AT WORST, YOU WILL FIND OUT WHAT THE PROSECUTION BELIEVES TO BE THE AMOUNT OF TIME THEY HAVE LEFT. IN OUR FIRM’S EXPERIENCE, WE HAVE NEVER HAD A PROSECUTOR ACT IN BAD FAITH WHEN PRESENTED WITH THAT QUESTION.


DUE DILIGENCE –CONT’DGO TO COURT AND CHECK THE FILE:

LIST THE COURT APPEARANCE DATES.

NOTE ANY REASON FOR ADJOURNMENTS OR TIME EXCLUDED OR CHARGED IN THE COURT’S NOTATIONS ON THE JACKET – THE COURT ACTION SHEET.

CHECK FILING DATES FOR SUPPORTING DEPOSITIONS, STATEMENTS OF READINESS, AND MOTIONS.

COMPARE THE TIME IN CONTROVERSY BETWEEN YOUR CALCULATIONS AND AND THE PEOPLE’S .

CHECK THE STENOGRAPHIC MINUTES.

COUNT THE NUMBER OF DAYS IN EACH CHARGEABLE ADJOURNMENT PERIOD

CALCULATE: ADD THE CHARGEABLE PERIODS AGAINST THE STATUTORY LIMIT.


MAKE THE MOTIONTHE DEFENSE SHOWS THAT THE STATUTORY TIME LIMIT HAS BEEN EXCEEDED.

THE PEOPLE’S RESPONSE MUST DEMONSTRATE THAT CERTAIN TIME PERIODS ARE EXCLUDABLE.

THE BURDEN THEN SHIFTS BACK TO THE DEFENSE TO DEMONSTRATE WHAT TIME IS CHARGEABLE. People v. Berkowitz


SAMPLE MOTION ------------------XCAPTION NOTICE OF MOTION TO DISMISS------------------X

PLEASE TAKE NOTICE, that upon the annexed affirmation of _____________ Esq., and the prior proceedings in this case, the undersigned will move this Court at 851 Grand Concourse Bronx, NY, PT-38, on the 2nd Day of January, 20__, at 9:30 a.m., or as soon thereafter as counsel may be heard, for an order dismissing the Indictment, pursuant to §§ 30.30(1)(a) and 210.20(1)(g) of the Criminal Procedure Law, and for such other and further relief as to the Court may seem just and proper. Dated: Bronx, New York

December __, 20__FIRM

DISTRICT ATTORNEY


------------------XCAPTION AFFIRMATION AND MEMORANDUM OF LAW

------------------X

_______________________, an attorney duly admitted to practice law in New York State, affirms the following to be true under penalties for perjury:

1. I am associated with The Bronx Defenders, and am attorney of record for P. I am familiar with the facts of this case and the prior proceedings held in it.2. This affirmation is made in support of the Mr. P‘s Motion to Dismiss the Indictment pursuant to C.P.L. § 30.30(1)(a).Unless otherwise indicated, all allegations of fact are based upon inspection of the record in this case, and personal knowledge of the proceedings. 3. Mr. P was arrested December 13, 1999, and charged with one count of P.L. 265.02(4). Mr. P was arraigned in Bronx Criminal Court on December 14, 1999, and was released on his own recognizance. Mr. P was subsequently indicted for Criminal Possession of a Weapon in the Third Degree under indictment number 592-00. 4. By oral order, this Court dismissed indictment 592-00 on June 6, 2000, followed by a written decision on June 12, 2000. Mr. P was re-indicted under indictment 3599-00 and was arraigned on that indictment on October 3, 2000. The case is currently pending before this Court.

Period from December 14, 1999 to March 14, 2000 (91 days)

5. Prosectuion of this matter commenced with the filing of a felony complaint against Mr. P on December 14, 1999. Accordingly, the six month period during which the prosecution must be ready for trial in this case is 183 days -- December 14, 1999 to June 14, 2000. See C.P.L. § 30.30(1)(a); People v. Cortes, 80 N.Y.2d 201, 208 fn.3 (1992). 6. Since Mr. P was released at arraignment on December 14, 1999, the case was adjourned to January 24, 2000. On January 24th, the prosecution indicated it was going to indict the case and Mr. P elected not to testify before the Grand Jury. The case was adjourned to Supreme Court for arraignment on February 22, 2000. On February 22 nd, the court had no indictment in the file and Mr. P could not be arraigned. The case was adjourned to March 14, 2000 for arraignment. On March 14 th, Mr. P was arraigned on the indictment and the prosecution announced its readiness for the first time.


7. The period from December 14, 1999, to March 14, 2000 must all be charged to the prosecution for a total of 91 days. The entire period was pre-readiness delay, and there were no excludable periods.

Period from March 14, 2000, to June 6, 2000 (0 days)8. On March 14, 2000, the case was sent to this Court on April 25, 2000. On that date a motion schedule was set and the case was adjourned for decision on June 6, 2000. This period is not chargeable to the prosecution.

Period from June 6, 2000 to October 3, 2000 (119 days)

9. On June 6, 2000, this Court dismissed the indictment against Mr. P. The Court stated that the prosecution had thirty days to re-present the case and noted that a written decision would follow. On June 12, 2000, the Court issued its written decision confirming its oral order on June 6th. 10. The prosecution did, at some point over the summer, re-present the case to a Grand Jury, and the indictment was apparently filed on August 7, 2000. On September 5, 2000, the prosecution filed a statement of readiness. The prosecution then notified counsel that arraignment on the indictment would take place before this Court on September 19, 2000. Prior to that date, however, the prosecution notified counsel that the arraignment would not take place, and had now been scheduled for September 26th. Thereafter the prosecution again notified counsel that the arraignment had been changed to October 3, 2000. Finally, on October 3rd, Mr. P was arraigned on the new indictment.11. It is well settled that an indictment which replaces an earlier one in the same criminal action relates back to the original accusatory instrument for purposes of calculating speedy trial time pursuant to C.P.L. § 30.30. See People v. Sinistaj, 67 N.Y.2d 236, 239 (1986); People v. Lomax, 50 N.Y.2d 351, 355-56 (1980). It is equally well settled that when an indictment is dismissed, the prosecution cannot be ready for trial until a new indictment is obtained, "since the absence of a valid indictment during this period was a circumstance that directly impaired [the prosecution's] ability to proceed to trial." People v. Cortes, 80 N.Y.2d 201, 211 (1992). The indictment in this case was dismissed on June 6, 2000. Accordingly, the speedy trial clock started ticking again from that date. Although the prosecution seemingly obtained an indictment in August, it did not file a statement of readiness until September 5, 2000. On September 5th, the prosecution had accumulated a total of 182 days of chargeable time. (Adding 91 days from June 6 to September 5 to the 91 days already charged). Because the prosecution could not have Mr. Perdue arraigned on the indictment and state ready for trial within the permissible 183 day period, the prosecution's statement of readiness on September 5th was illusory.


12. This case is controlled by People v. England, 84 N.Y.2d 1 (1994). In England, the prosecution filed a statement of readiness along with the indictment on the last possible day before the six month period under C.P.L. § 30.30(1)(a) had expired. The Court concluded that this statement of readiness was illusory because the prosecution could not legally bring the defendant to trial within the statutory period. The Court reasoned that because arraignment is a necessary prerequisite for trial -- because it confers jurisdiction on Supreme Court -- and because C.P.L. § 210.10(2) requires two days notice to the defendant of the arraignment, arraignment and hence trial were impossible within the statutory period. Thus the statement of readiness was illusory. Id. at 5-6. See also People v. Goss, 87 N.Y.2d 792, 796 (1996) (while People can be ready before arraignment, there must be time to arraign defendant under C.P.L. § 210.10(2) and to start trial within in statutory period). 13. In this case, it was impossible to arraign Mr. P on the new indictment within the necessary statutory period. The prosecution filed a statement of readiness on September 5, 2000. As of that date, the prosecution had 182 days of chargeable time. Because C.P.L. § 210.10(2) requires at least two days notice to the defendant before arraignment, and no such notice was provided before September 5, Mr. P could not be arraigned within the 183 day period of this case. 14. Accordingly, in line with People v. England, 84 N.Y.2d 1, the statement of readiness was illusory. Indeed, the prosecution did not attempt to arraign the defendants until September 19, 2000, and even then changed the date twice before finally arraigning Mr. P on October 3, 2000. Nor did the prosecution comply with C.P.L. § 210.10(3), under which it could have asked the Court to issue a summons for Mr. P for a particular arraignment date. In fact, the reason Mr. P was not arraigned until October 3, 2000, is that the prosecution failed to properly calendar the case. Clearly the prosecution's statement of readiness was illusory and the entire period from June 6th to October 3rd must be charged to the prosecution for a total of 119 days.

Period from October 3, 2000 to January 2, 2001 (10 days) 15. On October 3, 2000, Mr. P was arraigned on the new indictment and the Court agreed to review the new Grand Jury minutes. The case was adjourned to November 14, 2000 for pre-trial suppression hearings. On November 14, 2000, the prosecution was not ready for hearings. It requested one week to be ready. The case was adjourned to November 28th. The prosecution must be charged 7 days. 16. On November 28th, the prosecution was not ready, but counsel for co-defendant consented to the adjournment. The case was adjourned to December 15, 2000. This time is not chargeable.17. On December 15th, the prosecution again was not ready to proceed to hearings. It requested three days. The case was adjourned to January 2, 2001. The prosecution must be charged 3 days. Accordingly, the prosecution must be charged a total of 10 days during the period between October 3rd and January 2, 2001.


Period from October 3, 2000 to January 2, 2001 (10 days)

18. On October 3, 2000, Mr. P was arraigned on the new indictment and the Court agreed to review the new Grand Jury minutes. The case was adjourned to November 14, 2000 for pre-trial suppression hearings. 19. On November 14, 2000, the prosecution was not ready for hearings. It requested one week to be ready. The case was adjourned to November 28th. The prosecution must be charged 7 days. 20. On November 28th, the prosecution was not ready, but counsel for co-defendant consented to the adjournment. The case was adjourned to December 15, 2000. This time is not chargeable.21. On December 15th, the prosecution again was not ready to proceed to hearings. It requested three days. The case was adjourned to January 2, 2001. The prosecution must be charged 3 days. 22. Accordingly, the prosecution must be charged a total of 10 days during the period between October 3rd and January 2, 2001.

WHEREFORE, Mr. P respectfully requests that this Court dismiss the present indictment.

Dated:

___________________________________


LAST LOOK. AND GOOD LUCK WITH YOUR DEFENSE

TIME LIMIT:(Number of days after filing)

Offense (Top Count In Instrument): PL §§125.10, 125.15, 125.20, 125.25, 125.27: NONE

All other Felonies: 6 MONTHS

Misdemeanor w/sentence over 3 months: 90 DAYSMisdemeanor w/sentence of 3 months or less: 60 DAYS

Violation: 30 DAYSTraffic Infraction: NONE

PARDALIS & NOHAVICKA

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