| People v Beasley |
| 2010 NY Slip Op 00271 [69 AD3d 741] |
| January 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lamont Beasley, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Holdman,J.), rendered January 31, 2008, convicting him of criminal possession of a controlled substancein the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant claims, inter alia, that the Supreme Court (Firetog, J.) erred in denying hismotion to dismiss the indictment pursuant to CPL 30.30. We disagree.
On May 27, 2005, an indictment was returned against the defendant, and the People filed astatement of readiness with the court and served it on the defendant. Thereafter, at hisarraignment on the indictment, the defendant asked the court to inspect the grand jury minutes.The court adjourned the matter to August 17, 2005, for discovery and for the People to producethe grand jury minutes. On August 17, 2005, the People represented that they would file thegrand jury minutes "off calendar." The court stated that the matter would be adjourned to allowthe inspection of the grand jury minutes, and that "[t]he adjournment will be by the Court."Defense counsel asked that the case be adjourned to the latter part of September, specifically,September 29, 2005. To accommodate counsel, the court agreed to adjourn the case toSeptember 28, 2005, for a decision as to the sufficiency of the grand jury evidence. The courtdirected the People to furnish the grand jury minutes to chambers, and the People did so onAugust 30, 2005. On September 28, 2005, as scheduled, the court rendered its decision as to thesufficiency of the grand jury evidence, dismissing one count of the indictment, but giving thePeople leave to re-present.
The defendant's motion to dismiss the indictment pursuant to CPL 30.30 turns on whetherthe period between August 17, 2005, and August 30, 2005, is chargeable to the People. Thedefendant contends that it is, and that, when added to the other unexcused periods of delay, thePeople were not ready for trial within six months. To the contrary, we find that no part of theperiod between August 17, 2005, and September 28, 2005, including the period between August17, 2005, and August 30, 2005, was chargeable to the People.[*2]
In felony cases, CPL 30.30 requires that the People beready for trial within six months of the commencement of the action (see CPL 30.30 [1][a]). "Whether the People have satisfied this obligation is generally determined by computing thetime elapsed between the filing of the first accusatory instrument and the People's declaration ofreadiness, subtracting any periods of delay that are excludable under the terms of the statute andthen adding to the result any postreadiness periods of delay that are actually attributable tothe People and are ineligible for an exclusion" (People v Cortes, 80 NY2d 201, 208[1992] [emphasis added]; see People vFehr, 45 AD3d 920, 922 [2007]; People v Vaughn, 36 AD3d 434, 436 [2007], cert denied552 US —, 128 S Ct 1711 [2008]). Inasmuch as the People communicatedtheir readiness for trial on May 27, 2005, when they filed the indictment, the period at issue heremust be seen as constituting, if anything, a postreadiness delay.
When the case was called on August 17, 2005, it was understood that a reasonableadjournment would be required to give the court an opportunity to inspect the grand jury minutesand determine the defendant's challenge to the legal sufficiency of the grand jury evidence. Thedate to which the matter was adjourned was selected to accommodate defense counsel's expressrequest (cf. People v Williams, 32AD3d 403, 404-405 [2006]). On September 28, 2005, the court, having received the grandjury minutes from the People nearly a month earlier, rendered its decision. On this record,therefore, the fact that the People delivered the grand jury minutes to the court "off calendar" onAugust 30, 2005, rather than on August 17, 2005, cannot be said to have caused any delaywhatsoever in the progress of the case (cf. People v Harris, 82 NY2d 409, 412 [1993];People v McKenna, 76 NY2d 59 [1990]). Notably, the defendant makes no claim, andmade no claim in the Supreme Court, that, had the grand jury minutes been handed up at theAugust 17, 2005, court appearance, he would have asked for an earlier adjourned date. Theabsence of such a claim is significant, as it is the defendant who bears the burden ofdemonstrating that any postreadiness delays should be charged to the People (see People v Brewer, 63 AD3d402 [2009]; People v Daniels, 217 AD2d 448, 452 [1995]; cf. People v Cortes,80 NY2d at 215-216). Since, excluding the period between August 17, 2005, and August 30,2005, the total time chargeable to the People was less than six months, the Supreme Courtproperly denied the defendant's motion to dismiss the indictment.
Our dissenting colleagues point to a period following re-presentation of the case to the grandjury, when the court charged the People with the delay in handing up the new grand jury minutesfor inspection. They see no difference, for purposes of CPL 30.30, between that period and theperiod at issue here. We respectfully disagree.
Following the defendant's arraignment on the new indictment on January 3, 2006, the courtadjourned the case to February 15, 2006, for the People to produce the minutes of there-presentment. The court advised the People specifically that, if they produced the minutesbefore February 15, 2006, it would attempt to have a decision on the sufficiency of the grandjury evidence on that date. The People, however, did not produce the minutes on or beforeFebruary 15, 2006, and, on that date, the court adjourned the case to March 13, 2006, ruling thatthe People would be charged until they produced the minutes. The People did not object, andthey filed the minutes on February 23, 2006. By virtue of its ruling, the court found, in effect,that the People's failure to produce the minutes on or before February 15, 2006, actually delayedthe case. In stark contrast, there was no finding here that the People's delivery of the originalgrand jury minutes to the court on August 30, 2005, rather than on August 17, 2005, delayed thecase in any respect, and the circumstances establish that it did not. Consequently, inasmuch asthe record does not support the conclusion that the period in dispute constituted a postreadinessdelay attributable to the People, it was not chargeable pursuant to CPL 30.30.
The defendant's claim that he was denied the effective assistance of counsel is without merit(see People v Henry, 95 NY2d 563, 565-566 [2000]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Rivera, J.P., Fisher and Dickerson, JJ., concur.
[*3]Eng, J., dissents, and votes to reverse the judgment, grantthe defendant's motion pursuant to CPL 30.30, and dismiss the indictment, with the followingmemorandum, in which Hall, J., concurs:
The People, after initially having been granted a period of more than two months to obtaingrand jury minutes for inspection by the court, failed, without explanation or excuse, to producethe required minutes on August 17, 2005. Engaging in a retrospective analysis, the majorityconcludes that since the court would have been required to adjourn the proceeding on August 17,2005, even if the grand jury minutes had indeed been produced, the People should not becharged with the 13-day period between August 17, 2005, and August 30, 2005, when the grandjury minutes were provided "off-calendar." I believe that the majority's analysis, whichdisregards prosecutorial laxity in favor of an inquiry focused solely upon whether, in hindsight,the failure to produce the grand jury minutes caused an actual delay in proceeding to trial, isinconsistent with the statutory purpose of CPL 30.30. Accordingly, I respectfully dissent, andvote to grant the defendant's motion pursuant to CPL 30.30, and dismiss the indictment.
On May 5, 2005, the defendant was arraigned on a felony complaint charging him, inter alia,with criminal possession of a controlled substance in the second degree. An indictment chargingthe defendant with criminal possession of a controlled substance in the second degree and twolesser offenses was subsequently filed on May 27, 2005, and the People served and filed astatement of readiness that day.
On June 15, 2005, the defendant appeared in court for arraignment on the indictment. Afterthe defendant entered his plea of not guilty, the prosecutor announced the People's readiness fortrial. Defense counsel then asked the court to inspect the grand jury minutes to determinewhether the evidence presented to the grand jury was legally sufficient to support the indictment.The court adjourned the case to August 17, 2005, "for open file discovery and the grand juryminutes." The People explain that, in Kings County, in lieu of requiring a written motion fromthe defense, it is customary for the court to direct the People to serve certain discovery material,and to submit the grand jury minutes for inspection to determine whether the indictment shouldbe dismissed pursuant to CPL 210.30 for evidentiary insufficiency.
At the defendant's next court appearance on August 17, 2005, the prosecutor stated that shebelieved that "this case was on for open file discovery and the grand jury minutes." When thecourt confirmed that the prosecutor's belief was correct, she indicated that "[t]he People will filethe grand jury minutes off calendar and forward the OFD [open file discovery] to defensecounsel." After a brief discussion regarding whether a plea agreement could be reached, thecourt stated "[a] date for the Court's decision. The adjournment will be by the Court." Defensecounsel then requested a late September date, and September 28, 2005, was selected. After theadjourned date was chosen, the court asked the prosecutor whether she would deliver the grandjury minutes to chambers. When the prosecutor agreed to deliver the minutes to chambers, thecourt commented "[y]es. I will do the decision."
The grand jury minutes subsequently were provided to the court on August 30, 2005, and, onSeptember 28, 2005, the court issued a decision dismissing count one of the indictment chargingthe defendant with criminal possession of a controlled substance in the second degree, andgranting the People leave to re-present the dismissed count to a new grand jury.
CPL 30.30 requires that the People be prepared to proceed to trial in a felony case within sixmonths, plus excludable time, from the commencement of the criminal action (see People vSinistaj, 67 NY2d 236, 239 [1986]). It is a statutory "readiness rule," enacted to serve thecore purpose of insuring prompt prosecutorial readiness for trial, and eliminating unjustifieddelays (id. at 239; see People v Osgood, 52 NY2d 37, 45 [1980]). Since thefiling of the felony complaint marked the commencement of this criminal action against thedefendant (see People v Osgood, 52 NY2d at 43; People v Anderson, 252 AD2d399 [1998]), the People were required to be ready for trial within six calendar months of May 5,2005, a period which, in this case, is 184 days.
In reaching its determination denying the defendant's motion to dismiss the indictmentpursuant to CPL 30.30, the Supreme Court (Firetog, J.) concluded that the 63-day periodbetween the defendant's arraignment on June 15, 2005, and August 17, 2005, should be excludedbecause this adjournment was attributable to motion practice. On appeal, the People contend, andmy colleagues and [*4]I agree, that this 63-day period wasproperly excluded because the People were entitled to a reasonable period of time to provide thegrand jury minutes to the court (seePeople v Trinidad, 8 AD3d 106 [2004]; People v Foy, 249 AD2d 217 [1998]).
However, I do not agree with the People's contention that the court properly excluded theentire 42-day period from August 17, 2005, to September 28, 2005, because defense counselrequested and consented to an adjournment to the late part of September. "Adjournmentsconsented to by the defense must be clearly expressed to relieve the People of the responsibilityfor that portion of the delay," and a failure to object to an adjournment does not constituteconsent (People v Smith, 82 NY2d 676, 678 [1993]; see People v Liotta, 79NY2d 841, 842 [1992]). Moreover, a sua sponte adjournment by the court is normally chargeableto the People absent the defendant's consent (see People v Meierdiercks, 68 NY2d 613[1986]; People v Lindsey, 248 AD2d 729 [1998]; People ex rel. Sykes v Mitchell,184 AD2d 466, 467 [1992]; People v Cortes, 175 AD2d 171, 173 [1991], affd80 NY2d 201 [1992]). Here, the court announced on August 17, 2005, that it was adjourningthe matter for production of the grand jury minutes and a decision on the defendant's oralapplication, in effect, to dismiss the indictment for legal insufficiency. The fact that defensecounsel requested a late September date after the court had already stated on the record that thematter was going to be adjourned "by the court" is not tantamount to consent.
Although a portion of the 42-day period between August 17, 2005, and September 28, 2005,should be excluded from the speedy trial calculus because some time was required for the courtto review the grand jury minutes and render its decision (see People v Edwards, 215AD2d 498, 499 [1995]), I believe that the first 13 days of this period should be charged to thePeople because prosecutorial inaction prevented the court from beginning its inspection of theminutes until August 30, 2005, when the minutes were provided off-calendar. While the Peopledeclared their readiness on May 27, 2005, simultaneous with the filing of the indictment, "[t]rialreadiness in CPL 30.30 means both a communication of readiness by the People on the recordand an indication of present readiness . . . The inquiry is whether the People havedone all that is required of them to bring the case to a point where it may be tried" (People vEngland, 84 NY2d 1, 4 [1994]; see People v McKenna, 76 NY2d 59, 64-65 [1990]).Thus, for example, where, as here, the People fail to provide the grand jury minutes necessaryfor the resolution of the defendant's motion to dismiss the indictment, they are not presentlyready for trial (see People v England, 84 NY2d at 4; People v McKenna, 76NY2d at 64). Indeed, the failure to provide the court with the grand jury minutes necessary toresolve a pending motion to dismiss the indictment "[is] a direct, and virtually insurmountable,impediment to the trial's very commencement" (People v McKenna, 76 NY2d at 64).Accordingly, a delay in providing grand jury minutes may properly be charged to the Peoplewhere their inaction actually caused the delay (id.; see People v Johnson, 42 AD3d 753, 754 [2007]). Here, thePeople clearly did not do everything required of them to bring this case to trial because, afterhaving been provided with a more than reasonable 63-day period within which to provide thegrand jury minutes to the court, they simply failed to produce the minutes on August 17, 2005(see People v Johnson, 42 AD3d753 [2007]; People v Burwell, 260 AD2d 498 [1999]; People v Reyes, 240AD2d 165 [1997]). Moreover, given the prosecutor's complete failure to explain why the minutescould not be produced, the only inference which may reasonably be drawn in this case is that thePeople failed to make a diligent effort to procure the minutes.
Furthermore, I cannot concur with the majority's rationale that the People's failure to producethe grand jury minutes resulted in no actual period of postreadiness delay because it wasunderstood by the court, the prosecutor, and defense counsel that a reasonable period of timewould be required to rule on the defendant's challenge to the sufficiency of the grand juryevidence once the minutes were produced. First of all, had the People exercised greater diligenceand produced the minutes in advance of the August 17, 2005, adjourned date, it is entirelypossible that a decision on the defendant's motion could have been rendered on that date,completely obviating the need for an additional adjournment on August 17, 2005. Moreimportantly, the majority's analysis shifts the focus of the inquiry completely away from theprosecutorial laxity which CPL 30.30 is aimed at reducing in favor of a retrospective analysiswhich attempts to determine, with the benefit of hindsight, whether the People's lack of presentreadiness on August 17, 2005, should be excused because it ultimately resulted in no delaybeyond that which would have been required in order to decide the pending motion. In practice,however, the initial determination of whether a postreadiness adjournment should be charged tothe People is normally made at the time the adjournment is granted, taking into account whichparty has requested the adjournment, and [*5]the reason why theadjournment is necessary. Introducing a purely retrospective analysis into this equation torationalize the failure to hold the People accountable for their completely unexplained delay inproducing the grand jury minutes in this case only serves to cloud the rules governing how timeexclusions are calculated under CPL 30.30, and abrogates our responsibility to provide the trialcourts with guidance in this often murky area. Since the court could not begin its inspection ofthe grand jury minutes until the People fulfilled their obligation of providing the minutes onAugust 30, 2005, only the period of 29 days from August 30, 2005, to September 28, 2005, whenthe court rendered its decision, should be excluded on the ground that a pretrial motion fordismissal of the indictment was under consideration (see CPL 30.30 [4] [a]; People vSinistaj, 67 NY2d at 240 n 3). Adding the 13-day period between August 17, 2005, andAugust 30, 2005, to the 173 days of delay calculated by the Supreme Court, the total amount ofdelay chargeable to the People is 186 days, exceeding the 184-day limit in this case.Accordingly, in my view, the defendant's CPL 30.30 motion should be granted, and theindictment dismissed.
In reaching my conclusion, I also find it significant that the People take an inconsistentposition on the issue of excluding delay for the failure to produce grand jury minutes at twodifferent stages in this proceeding. After the dismissed count of the original indictment wasre-presented to a new grand jury, and a second indictment charging the defendant with criminalpossession of a controlled substance in the second degree was filed, on January 3, 2006, defensecounsel asked the court to inspect the minutes of the re-presentment. The court agreed to adjournthe matter to February 15, 2006, for a review of the grand jury minutes, and commented that "[i]fthe People can get them [the minutes] before that date I'll be happy to review them and see if Ican get a decision." On February 15, 2006, the prosecutor advised the court that the grand juryminutes were not yet available, and that she anticipated that they would be available by thefollowing week. The court responded "[a]ll right. What I will do is charge the People until theGrand Jury minutes are served. And we will put it on for decision regarding the new Grand Juryminutes." The court then adjourned the case until March 13, 2006. The People provided the newgrand jury minutes to the court on February 23, 2006, and concede that the eight-day period,from February 15, 2006, to February 23, 2006, was properly chargeable to them. In this regard,the People note that while they "fell out of readiness" on January 3, 2006, when defense counselrequested an inspection of the grand jury minutes relating to the second indictment, once thecourt was provided with the minutes, the People's readiness resumed. The majority reasons thatthis 8-day delay should properly be treated differently from the earlier 13-day delay because thecourt expressly indicated on January 3, 2006, that, if the minutes were provided prior to theadjourned date, it would try to have a decision by February 15, 2006. Thus, the majority reasonsthat the People's failure to timely provide the grand jury minutes relating to the secondindictment caused an actual delay, while the failure to provide the grand jury minutes relating tothe original indictment on August 17, 2005, did not. Again, this disregards the possibility thathad the People provided the grand jury minutes relating to the original indictment in advance ofthe August 17, 2005, adjourned date, the court could have ruled on the defense counsel's requestfor dismissal on August 17, 2005. Furthermore, what both delays have in common is that theywere caused by the People's failure to provide the court with the grand jury minutes which werenecessary for the case to proceed. Thus, in both instances, adjournments were necessitated by thePeople's dilatory conduct. Indeed, the circumstances surrounding the delay in providing theminutes of the first grand jury proceeding were far more egregious, because the People weregiven nearly twice as long to procure the minutes, and offered no explanation for their failure todo so.
In sum, one of the clearest rules in applying the CPL 30.30 readiness rule is thatpostreadiness delays directly attributable to prosecutorial inaction—such as dilatoriness inproducing grand jury minutes for inspection—are chargeable to the People. I see no reasonto depart from that principle here in order to shield the People from the consequences of theirinaction.