Speedy Trial Update
February 14, 2008
With the turning of a new volume, a new year, and incidentally, another birthday, I find it difficult to avoid reflecting upon the ceaseless passage of time. What could be better for this, the first issue of the new year, than an issue devoted to recent decisions in the area of speedy trial?
Speedy trial is actually a misnomer for the actual content of this week's Bulletin. There is simply nothing speedy, or for that matter rational about New York's speedy trial scheme. Speedy trial, as we know, is initially set out in CPL '30.20. This section simply sets forth that [a]fter a criminal action is commenced, the defendant is entitled to a speedy trial. Seems reasonable enough, but how does it play out for real? Actually, it doesn't. In People v. Taranovich (1975) 37 NY2d 442, 373 NYS2d 79, the Court of appeals emphasized that there is no specific temporal duration after which a defendant automatically becomes entitled to release for denial of a speedy trial. That decision depends on a variety of factors such as (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay. When Taranovich is raised in the face of a claim of undue delay, courts tend to realistically assess the delay in the face of the demands imposed by massively packed dockets. Of course, if the defendant is able to show that he or she has suffered hardship at the hands of inordinate delay, the outcome may be different. As recognized by the majority in Taranovich: if the delay precipitated by the prosecution resulted in the defendant's being unable to call certain witnesses, or if the duration of the delay was such that it might be expected that the witnesses would be less able to articulate exactly what had transpired, then the defendant would have a strong argument for dismissal of the indictment (Taranovich at 447, citing People v. Prosser, supra, at p 356). Even so, dismissals under Taranovich are rare.
By far the most utilized vehicle for asserting a denial of the defendant's right to a speedy trial is CPL '30.30. While a detailed examination of this enormously complex statute is beyond the scope of this week's lead note, let's review a few of the basics. First, CPL '30.30 is not a speedy trial statute. The purpose of the legislation was to foster trial readiness on the part of the People. In furtherance with this stated ambition, CPL '30.30 looks to the time when the People first declared their ability to proceed to trial. The statute thereafter sets out various time periods within which the People must declare such readiness, determining the same from the point in time in which the action is deemed commenced, generally the filing of the first accusatory instrument (see, People v. Sturgis (1976) 38 NY2d 625, 627, 381 NYS2d 860; People v. Osgood (1980) 52 NY2d 37, 40, 436 NYS2d 213; CPL '1.20). Provided such a declaration is timely given, CPL '30.30 initially leaves the case to be resurrected only by the concept of post readiness delay CPL '30.30(3)(b). As a general rule, when the People request, procure or otherwise occasion delay which directly impacts upon the ability of the case to proceed to trial, such delay will, if unconsented to by the defense, generally result in the creation of time which can be tacked to pre-readiness delay. If the sum total of the delay exceeds the statutorily specified maximum then the court must grant the defendant's motion to dismiss, if timely brought. Not all post-readiness delay may be counted, however. When delay on the part of the People may be traced to an exceptional fact or circumstance (see, CPL '30.30(4)[g]) such as the unavailability of evidence material to the people's case, when the district attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available, it may not be counted. Nor may the defendant expect to take a tally of post-readiness delay which occurs as a result of her own actions such as the filing of pre-trial motions, competency hearings, adjournments requested or consented to by the defense or the defendant's own unavailability.
While the foregoing is perhaps a gross oversimplification, hopefully it will provide a sufficient backdrop against which to discuss the past years decisions on this enormously litigated front.
Without question, the most significant speedy-trial decision of the year was the affirmance by the Court of Appeals of the Third Department's decision in People v. England, (1994) 84 NY2d 1, 613 NYS2d 854. In England, a full six months after the filing of the felony complaint, the St. Lawrence County Grand Jury, as it was being discharged, handed up an indictment charging defendant with burglary in the second and third degrees and grand larceny in the third and fourth degrees. That indictment, and 23 others that were returned at the same time, were filed the day they were handed up with the St. Lawrence County Court. Each indictment was accompanied with a notice which declared that the People were ready for trial.
The sole question before the Court in England was whether, as phrased by the court, in the unusual circumstances presented‑‑where, owing entirely to the People's delay, no indictment was handed up for the full six months‑‑the People could prior even to defendant's arraignment genuinely have declared trial readiness. Agreeing with the County court and the Appellate Division, the Court of Appeals found the People's announcement of readiness to be insufficient to satisfy the mandate of CPL '30.30.
Of paramount importance to the Court in England was the apparent futility of an announcement tendered prior to arraignment. Defendant could not have been brought to trial before arraignment, the process by which the court acquires jurisdiction over a defendant. That is an elemental prerequisite to trial readiness. Here, the undisturbed factual finding is that the long delay was directly attributable, not to defendant or court congestion, but to the People's laxity in securing an indictment that provided a jurisdictional basis for the court to act at all. With arraignment within the statutory period impossible, the People's statement of readiness for trial on December 24, 1992, was meaningless. In the circumstances, the People could not validly declare readiness until January 7, 1993, at defendant's arraignment, entitling defendant to dismissal of the indictment. (England at p. 4-5).
Should England be strictly held to its peculiar set of facts? The decision is indeed strange. The Court took great pains to set its opinion upon a wealth of hard and fast precedent. Odd indeed is the following quotation from the majority opinion: [w]here the trial court and Appellate Division have found the relevant period to be entirely chargeable to the unexplained laxity of the People, the announcement of trial readiness, before defendant was even brought before the court, can only be an empty declaration, insufficient to satisfy CPL '30.30. What, pray tell, does this reference to unexplained laxity mean? Does this mean that when the failure to timely indict can be explained, that a declaration of readiness that precedes an indictment will be valid?
In People v. Delgado, 1994 NY App. Div. LEXIS 11087, the First Department affirmed a conviction, notwithstanding an England type claim. Interesting in Delgado is that the court did not seem to evince an intent to go behind the delay. Agreeing with the defendant, that the period from January 9, 1992, when the case was presented, voted and the People filed a certificate of readiness, as well as informed defense counsel by telephone that they were ready for trial, until such a declaration appears on the record was illusory and insufficient to stop the running of the speedy trial clock, since the indictment was not actually filed until the next day, January 10, the Court, nonetheless, found an insufficient period to have transpired. Before leaving Delgado, when the defendant contends that the People did not answer ready for trial on a particular date, must the court grant a motion to dismiss when the People merely oppose the motion with an answering affidavit unsupported by the transcript of the proceeding? Apparently the answer is no. A negative inference that the People did not announce their readiness on January 31, should not have been drawn merely because they did not supply the minutes of the proceedings conducted on that date to the court with their opposition to defendant's speedy trial motion (Delgado, supra.). Of final interest in Delgado is resolution of a McKenna claim. In People v. McKenna, the Court of Appeals held that the unexcused failure of the People to provide the minutes of the Grand Jury until five months after their statement of readiness was made, was not a reasonable delay and, hence, the delay was counted against the People in determining the merits of a motion brought pursuant to CPL '30.30. In People v. Harris, (1993) 82 NY2d 409, 604 NYS2d 918, the Court of Appeals put to rest any lingering doubts that the commencement of a McKenna claim was the point at which the defendant's demand is filed, and not when the court orders the inspection. What, however, is a reasonable period of time? Here, there does not seem to be any hard and fast rule. Various periods of time have been held to be reasonable (see, People v. Harris, supra, [36 days]; People v. Rodriguez, [1986, Crim Ct, NY County] 132 Misc2d 1044, 506 NYS2d 406 [36 days]; see also, People v. Irons, (1987, Crim Ct NYC) 137 Misc2d 871, 523 NYS2d 731 [14 days]; People v. Fischer, (1986, Crim Ct NYC) 132 Misc2d 258, 503 NYS2d 962 [19 days]; People v. Ellis, (1984, Kings County Sup) 123 Misc2d 544, 474 NYS2d 188 [25 days]). Delgado, likewise found 36 days to be reasonable, and accordingly affirmed.
What of the situation where the Grand Jury stenographer is not under the direct supervision and control of the People; will the failure of such a reporter to produce the minutes for inspection within a reasonable period of time, be charged to the People? Possibly. In People v. Sutton, (November 23, 1994, 3rd Dept) - AD2d -, - NYS2d -, 1994 NY App. Div. LEXIS 11617, a stenographer appointed pursuant to Judiciary Law '321 failed to produce the Grand Jury minutes for a period of five months following a demand. At a hearing held to ascertain the efforts made by the special prosecutor to expedite production of the transcript, the stenographer testified that the special prosecutor did not pressure him, or even ask him, to produce the minutes with any haste. Finding that it cannot be said that the special prosecutor's efforts rose to the level of doing >all that is required * * * to bring the case to the point where it may be tried (People v McKenna, 76 NY2d 59, 64, 556 NYS2d 514), the decision to dismiss was affirmed. Contrasted by the Sutton court was the situation presented by People v. Hueston (1991, 2nd Dept) 171 AD2d 812, 567 NYS2d 614. In Hueston, the court requested that the People provide defense counsel with transcripts of earlier proceedings prior to trial. Noting that Supreme Court reporters are not within the control of the People, the Second Department held that the Trial Judge properly excluded the delay and determined that the People had acted diligently and reasonably in attempting to comply with its request for the minutes.
Sutton is also interesting from another aspect. As discussed above, determination of what forms a reasonable period of time to produce the Grand Jury minutes has been afforded little assistance by the courts. In Sutton, the court carefully reviewed the activities of the stenographer and came to the conclusion that: [t]he stenographer testified that he was on vacation for five weeks, and was occupied with a prior professional commitment for two weeks, and it was also established that the actual transcription of the Grand Jury minutes should have required, at the most, three weeks. Thus, even allowing for the extra time required by the stenographer to attend to his prior commitments ‑ a factor which should have been considered by the special prosecutor before the appointment was made ‑ a reasonable time for providing the minutes would be no more than 10 weeks, or 70 days, from the time they were requested. Hence, of the time taken to produce the transcript, at least 72 days are chargeable to the People.
The inability of the People to produce witnesses at the time readiness is announced will seldom be raised by the defendant, since he or she is rarely privy to the private doings of the prosecution's witnesses, or simply doesn't inquire as to the status of witnesses at the time the announcement is made. When discovered however, the test, as annunciated by the Court of Appeals in People v. Kendzia, is strict: [T]he prosecutor must make his statement of readiness when the People are in fact ready to proceed. The statute contemplates an indication of present readiness, not a prediction or expectation of future readiness (People v Kendzia, 64 NY2d 331, 337, 486 NYS2d 888, 476 NE2d 287).
In People v. Smith, (1994 NYC Crim) - Misc2d -, - NYS2d -, 1994 NY Misc LEXIS 510, the defendant was charged with violation of Vehicle and Traffic Law sections 1192 (2) and (3). The People filed statements of readiness on March 1 and March 29, 1994, but were unable to proceed due to the unavailability of their witnesses when the matter was reached for trial on February 10, March 24, and April 21, 1994. The issue which was therefore before the Court was whether the prior declaration of readiness was obviated by the uncontested later inability to proceed. Phrased differently, does a statement of readiness, filed and served during an adjournment period, stop the running of CPL '30.30 when the readiness is not maintained on the adjourned date?
Holding it does not, Judge Michael R. Sonberg held that the People must be charged with the entire adjournment period unless they allege (and subsequently prove at a hearing, if necessary) that their non‑readiness on the adjourned date would otherwise be excluded from 30.30 calculations. Readiness, held the Court, is meaningful in a practical sense only if the People are ready on the day a case is on the calendar. Finding that People v. England, supra, made it clear that readiness is practical, rather than theoretical, the Court rejected the assertion that People v Kendzia, somehow suggested that the People's obligation to be ready is satisfied merely by being ready on a date when no one is in court, without regard to the ability to be ready on the next court date. Theoretical readiness (during an adjournment period), without practical readiness (on the next adjourn[ed] date), does not advance any of the interests which 30.30 seeks to protect.
A situation that frequently arises is that the People, for one reason or another, request a brief adjournment of an impending trial. Thereafter, due to court congestion, the matter is not reached for an extended period of time. Is the entire period of time properly charged to the People? Absent additional circumstances, it is not. In People v Johnson, (November 16, 1994, 4th Dept), - AD2d -, - NYS2d -, 1994 NY App. Div. LEXIS 12000, the People requested a one week adjournment as a result of the unavailability of a witness. Although a period of 53 days subsequently transpired, the Fourth Department held that it was not chargeable to the People since it occurred as a result of court congestion.
Likewise, in People v. Lourens, (1994, 2nd Dept) - AD2d -, - NYS2d -, 1994 NY App. Div. LEXIS 9906, one day was attributed to the unavailability of a trial assistant. A contiguous period transpired as a result of the trial justice's attendance at a judicial seminar. The record established that another assistant was available to try the case (C.F., People v Jones (1986) 68 NY2d 717, 506 NYS2d 315). Accordingly, the Court held that the People were properly charged for but one day.
In People v. Cartagena, (1994, 1st Dept) - AD2d -, - NYS2d -, 1994 NY App. Div. LEXIS 11575, the Defendant presented a similar issue, albeit to a vastly different outcome. In Cartagena, the Defendant maintained on appeal that the People's declarations of readiness were not made in good faith. He did not, however, provide the lower court with the necessary factual allegation to decide the motion. Accordingly, the First Department held that the defendant failed to preserve his CPL '30.30 speedy trial claim by asserting generally that the People's statements of readiness had not been made in good faith, and listing the dates during which he had appeared before the lower court, without giving any factual basis for his contentions.
To exclude a period of post-readiness delay, predicated upon allegations that the defendant absconded, requires both the issuance of a bench warrant and the exercise of due diligence on the part of the prosecution. In People v. Bolden, (1993) 81 NY2d 146, 597 NYS2d 270, the defendant was arraigned upon a felony complaint on September 19, 1987. The felony complaint was subsequently replaced by an indictment that was filed on November 13, 1987, and on November 24, 1987, the defendant failed to appear for his arraignment. On December 7, 1987, a bench warrant was issued for the defendant's. Ultimately, the Defendant was not returned on the warrant until April 28, 1988, some 143 days after the warrant's issuance. At no point during this period did the People declare trial readiness.
On May 10, 1988, the defendant moved, pursuant to CPL '30.30, to dismiss, arguing that since his whereabouts during the period were known, there had been a total of 198 unexcused days of delay attributable to the People notwithstanding that a warrant had been issued.
Adopting the position that due diligence need not be shown when a bench warrant is issued, the trial court denied the motion and the Appellate Division affirmed.
Reversing, the Court of Appeals, in a decision by Judge Titone, held that the definition of "absent," as incorporated in the final sentence of CPL '30.30(4)[c], applied with equal force to the requirement to secure a bench warrant. While recognizing that the legislative intent of the statute was to absolve the People of the obligation of going forward, where the defendant has absconded or cannot be found, the benefit was not to be conferred without a liability: [T]he specific burden that the amendment was aimed at reducing was the People's duty to show a causative relationship between the defendant's absence and their delay, not their wholly independent duty to show 'due diligence' in locating or producing the defendant.
In People v. Maldonado, (November 7, 1994, 2nd Dept) - AD2d -, - NYS2d -, 1994 NY App. Div. LEXIS 12301, the Defendant was arrested on December 7, 1988. Following arraignment, he was released upon his own recognizance, but he never returned. A bench warrant was issued, and the police warrant squad made numerous efforts, albeit in vain, to locate him. Ultimately arrested on December 8, 1989, he was indicted, tried, and convicted. On appeal he claimed that the People's failure to exercise due diligence in locating him resulted in a denial of his CPL '30.30 rights.
Rejecting the argument, the Second Department observed that Athe warrant squad visited his last known addresses, contacted his sister, tried to locate him through the New York State Department of Motor Vehicles, and attempted to find his whereabouts through the New York State Human Resources dministration. Under these circumstances, the Court found that the efforts made by the warrant squad were sufficient to show due diligence on its part to locate the defendant and the time was properly excluded.
What if the efforts made to locate an absconding defendant are slight during the statutory period but are later increased. In such a situation can the People still show due diligence? In People v. Mazyck, (November 14, 1994 [revised], 2nd Dept) - AD2d -, - NYS2d -, 1994 NY App. Div. LEXIS 10648, 23 months elapsed between the filing of the sealed indictment, on February 15, 1990, and the defendant's arrest, on January 26, 1992, on an unrelated charge. Rejecting evidence that after November 1990 the defendant avoided apprehension since the record failed to indicate that prior to that time the defendant was aware that there was a warrant for his arrest, the Court turned to evidence of due diligence. While the decision is factually sparse, it appears that substandard efforts were made by the police department warrant squad in the six months which followed the Defendant's indictment. Although it appears that the authorities escalated their efforts during the period of time that followed, the Second Department essentially said that such efforts constituted too little too late and would not cure the earlier deficiency (see, also, People v. Pacheco, (1988, 2nd Dept) 145 AD2d 511, 535 NYS2d 641 [later efforts by DEA agents held not to cure]). Counsel should be firmly aware that the exclusionary period, if any, that may be attributed to the lack of diligence in attempting to locate a defendant who has apparently absconded only pertains to those instances where the People seek exclusion as a result of their unreadiness. It is of no use for a defendant, against whom the People have announced readiness, to assert the lack of due diligence. In People v. Cephas, (1994, 2nd Dept) - AD2d -, 616 NYS2d 668, the defendant failed to appear in court for the first day of his trial. A bench warrant was issued. However, the Defendant maintained that the prosecution had the burden of showing that they had exercised due diligence in locating him during the period he absented himself from the proceedings. Rejecting this approach, the Second Department noted that there is no requirement that [the People] exercise due diligence to locate the defendant when he has voluntarily absented himself from the proceedings, since the People did not contribute to the delays, and thus, the failure to proceed to trial had no bearing on the People's readiness.
As set out above, CPL '30.30(4)[g] provides that the time during which the People are unable to proceed, following a declaration of readiness, as a result of an exceptional fact or circumstance will generally be excluded. What, however, is an exceptional fact or circumstance? May the court make a finding that such existed without holding a hearing? In People v. Robinson, (1994, 2nd Dept) - AD2d -, - NYS2d -, 1994 NY App. Div. LEXIS 11501, the Second Department found that it was error not to hold a hearing with regard to that period of delay occasioned by the refusal of the People's police witness to testify due to a measles epidemic at the correctional facility where the defendant was being held, in order to determine whether the delay constituted exceptional circumstances. As to the necessity of a hearing, bear in mind that a trial court may not summarily grant a motion to dismiss, which the People oppose on the ground of exceptional circumstances, without affording the People a hearing on the issue (see, People v. Zirpola, (1982) 57 NY2d 706, 708, 454 NYS2d 702). At such a hearing, the People have the burden of proof by a preponderance of the evidence.
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