People v. Spector

EILEEN A. RAKOWER, J. On June 30, 1998, defendants were arrested during a union construction protest held in midtown Manhattan. On July 1, 1998, defendants were arraigned on a felony complaint charging them with, inter alia, the felony of riot in the first degree (Penal Law § 240.06). The People subsequently filed a superseding misdemeanor information on April 19, 1999—the most serious charge being an A misdemeanor. Defendants move to dismiss that information on speedy trial grounds pursuant to CPL 170.30 (1) (e) and 30.30. For the reasons stated herein, the defendants' motion is granted. Where a felony complaint is replaced with a new accusatory instrument charging a class A misdemeanor, the People must be ready for trial within 90 days from the filing of the new instrument or six months from the filing of the felony complaint—whichever is shorter. (CPL 30.30 [5] [c].) Defendants argue that the People have failed to answer ready at any time during the pendency of the case and that the misdemeanor information was filed more than six months after the defendants were originally arraigned on the felony complaint. People concede both points but argue that no time is chargeable, pursuant to CPL 30.30 (4) (a) and (g). CPL 30.30 (4) (a) and (g) provide that: "In computing the time within which the people must be ready for trial * * * the following periods must be excluded: "(a) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to * * * pre-trial motions * * * and the period during which such matters are under consideration by the court * * * "(g) other periods of delay occasioned by exceptional circumstances, including but not limited to, the period of delay resulting This court finds the aforementioned periods are not excludable pursuant to CPL 30.30 (4) (g) (174 days charged). The period between December 21, 1998 and January 4, 1999 is also includable. Once the People were in possession of the videotapes it was incumbent upon them to move the case forward. The People cannot rely on the "exceptional circumstances" exclusion while they evaluate their case (14 days charged). Finally, it is well settled that the period of delay resulting from a defendant's CPL 30.30 motion and the period of time that motion is under consideration by the court is excludable under CPL 30.30 (4) (a). (See, People v Worley, 66 NY2d 523 [1985].) Therefore, the period between January 4, 1999, when the case was adjourned for the defendants' CPL 30.30 motion, and February 11, 1999 is excludable pursuant to CPL 30.30 (4) (a) and (b). The time from February 11, 1999 until April 19, 1999 is excludable pursuant to CPL 30.30 (4) (c). The time from April 19, 1999 until the present is excludable pursuant to CPL 30.30 (4) (a). To date, there are 188 days charged to the People. That exceeds the allowable statutory time period pursuant to CPL 30.30. Defendants' motion to dismiss is granted. [1] On August 18, 1998, the Assistant District Attorney (ADA) assigned to Part F represented to the court that "we need time to retain some footage." On September 23, 1998, the ADA assigned to Part F represented that the People were litigating "a subpoena to a news channel for some type of video tape footage." [2] The court did accept the reduction as to defendant Mulligan, and formally arraigned Mulligan on the new information. Mulligan's case was then adjourned to Jury Part 7 for trial. [3] Pursuant to CPL 30.30 (1), the court has the power to dismiss pursuant to CPL 170.30, or 210.20, where the People have failed to afford the defendant a speedy trial. A motion to dismiss pursuant to CPL 170.30 applies to "an information, a simplified information, a prosecutor's information or a misdemeanor complaint" (CPL 170.30 [1]). A motion to dismiss pursuant to CPL 210.20 applies to "an indictment" (CPL 210.20 [1]). Therefore, there is no provision for the court to dismiss a felony complaint for failure to comply with the speedy trial provisions of CPL 30.30. (See, Matter of Morgenthau v Roberts, 65 NY2d 749 [1985].) [4] The People were unclear as to when compliance was complete. They state in their response papers that it was "on or about the third or fourth week of December." (People's response, at 4.) Due to the People's uncertainty, the court finds, in the light most favorable to the defendant, that compliance was complete on the third week, December 21, 1998. [5] The felony complaint filed at the defendants' arraignment stated in part: "Louis Spector then grabbed [sic] and shook the door of said storefront. "Deponent states that he thereafter observed defendant Louis Spector with approximately twenty people go to a blue van, New York license plate XP7684, and surround said van and begin to rock said van back and forth. "Deponent further states that he is informed by Police Officer Todd Jung, shield 13331 of the MSTF, that informant Jung observed defendant Ordway with said group of twenty individuals around said van and observed defendant Ordway rock said van back and forth * * * "Deponent states that he thereafter observed Police Officer Christopher Williams, shield 6096 of the MSTF, placing separately charged William Smith under arrest and defendant Louis Spector and defendant Derek Ordway, with approximately 100 demonstrators converged around Police Officer Williams and screamed: `Let him go.' * * * "Deponent states that when he was attempting to place defendant Louis Spector under arrest for the aforementioned conduct, defendant Spector attempted to prevent the deponent from arresting him in that he ran away from the deponent. "Deponent states that he recovered one bag containing marijuana from the defendant Louis Spector's pants pocket."