Cite as: People v. Christopher Cates, 2012BX073020, NYLJ 1202638501208, at *1 (Crim., BX, Decided December 10, 2013)

2012BX073020

Judge Linda Poust Lopez

Decided: December 10, 2013

ATTORNEYS

Defendant: Andre Townsend, Criminal Defense Practice Legal Aid Socity

The People: ADA Brian Stech, Bronx District Attorney's

DECISION AND ORDER

 

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Defendant Christopher Cates is charged with Resisting Arrest [P.L. §205.30], Obstructing Governmental Administration in the Second Degree [P.L. §195.05], four counts of Attempted Assault in the Third Degree [P.L. §110/120.00(1)] and four counts of Harassment in the Second Degree [P.L. §240.26(1)]. He now moves to dismiss pursuant to C.P.L. §30.30(1)(b). This court has reviewed the defendant's motion, the People's response, the entire court file.

C.P.L. §30.30(1)(b) provides that a motion to dismiss pursuant to C.P.L. §170.30(e) must be granted when the People are not ready for trial within "ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months, and none of which is a felony." In this case, the highest offense which defendant is charged with is a misdemeanor punishable by up to a year in jail. And as there were no felony charges here, the People were entitled to 90 days, from the commencement of the criminal action, to be ready for trial.

Defendant was arraigned on a misdemeanor complaint on December 28, 2012. The People filed and served a Statement of Readiness on March 26, 2013 asserting that they were "ready" on the charges of Resisting Arrest [P.L. §205.30] and Obstructing Governmental Administration in the Second Degree [P.L. §195.05] as well as three counts of Attempted Assault in the Third Degree [P.L. §110/120.00(1)] and three counts of Harassment in the Second Degree [P.L. §240.26(1)]. In the Statement of Readiness they acknowledge that they remain "not ready" on one count of Attempted Assault in the Second Degree and one count of Harassment in the Second Degree due to the complaining witness for those counts being deployed for military leave.

Despite the People's filing of a Statement of Readiness, they cannot be "ready" for trial until they have an information. People v. Colon, 59 N.Y.2d 921 (1983). The People cannot have an information until they file the Supporting Deposition from Correction Officer Jean-Francois. Any declaration of readiness before that time is a nullity. This court has discussed this at length in People v. Ausby__Misc 3d__,2013 NY Slip Op 51238(U)(Crim. Ct., Bronx County). The People have not filed a Supporting Deposition from that Correction Officer to date but argue that the period from March 26, 2013, when they filed the Statement of Readiness, until July 26, 2013, when defendant filed the instant motion, should be excludable as the Officer's unavailability constitutes an "exceptional circumstance" pursuant to C.P.L. §30.30(4)(g).

Defendant here is alleged to have committed certain acts on September 27, 2012 inside of Riker's Island Correctional Facility where defendant was detained. Defendant was arraigned on December 28, 2012. This matter was adjourned for conversion until February 27, 2013. On

 

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February 27, 2013 the People indicated that they filed Supporting Depositions and a Statement of Readiness, and all parties overlooked the fact that a third Supporting Deposition was required to fully convert the matter and a motion schedule was set. On May 15, 2013 the court realized that the matter was still missing a Supporting Deposition, and directed the People to convert the case by either the filing of the Supporting Deposition or dismissing the counts relating to that witness. The court also suggested to the People on that date that the Supporting Deposition be obtained by mail or fax.

The matter was then adjourned to June 11, 2013. On that date the People provided no information as to their efforts to retrieve a signed Supporting Deposition from the complainant. Nonetheless, on that date the People maintained that they were "ready."

In the People's response to defendant's motion they assert that Correction Officer Jean-Francois has been deployed since October 1, 2012, While some courts have held that military deployment qualifies as an "exceptional circumstance," the deployment in and of itself is not dispositive. The People must still establish that the absent witness is "material" and that either due diligence was exercised or, even with due diligence, their presence could not be secured. C.P.L. §30.30(4)(g). See also People v. Chardon, 9 Misc. 3d 1124(A)(2005). In this case, the witness was most immediately needed, not to come in and testify, but to sign the Supporting Deposition to convert the matter to an information. Had the People been able to convert the case, the defense would likely have asked for a motion schedule. After that, months would have gone by before the Correction Officer was actually needed to be present. But at least the defendant could have had some certainty as to what the final charges were, and the case could have been proceeding.

The People have not proffered any argument as to why the witnesses actual presence was necessary for them to secure a Supporting Deposition. They have not mentioned why they could not have mailed the complaint and a blank Supporting Deposition to the witness, and asked him to mail it back. They have not explained whether they had communicated with the witness by email, letter, text, telephone, or video conference, to determine whether they even wanted to go forward with this witness. Nor have they detailed any efforts they have made to do these things (i.e. made any showing of due diligence).

This case remains an unconverted misdemeanor complaint, and has never been converted to an information. The People will not be charged however with the period from February 27, 2013 until May 15, 2013, as the court, although mistakenly, told the People that the case was converted. People v. Dion, 93 N.Y.2d 893 (1999); People v. Brooks, 190 Misc.2d 247 (Appellate Term, 1st Dept. 2001); People v. Worley, 66 N.Y.2d 523 (1985). In total, there are 132 days accrued chargeable to the People. Therefore, the motion to dismissed pursuant to C.P.L. §30.30(1)(b) is granted.

This constitutes the decision and order of the court.

Dated: December 10, 2013

Bronx, New York

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