People v. Gonzalez

Building Service 32 B-J Legal Services Fund, New York City (Bruce K. Bentley and Steven McGowen of counsel), for defendant. Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Krupnick of counsel), for plaintiff.

OPINION OF THE COURT

LUCY BILLINGS, J. On October 6, 1997, defendant was arraigned on a misdemeanor complaint charging him with violating Vehicle and Traffic Law § 1192 (2) and (3), operating a motor vehicle while intoxicated, and Administrative Code of the City of New York § 16-118 (6), urinating in public. The offenses under Vehicle and Traffic Law § 1192 (2) and (3) are class A misdemeanors punishable by imprisonment of more than three months. Therefore the People were required to declare their readiness for trial on the three charges within 90 days, by January 3, 1998, absent excludable time. (CPL 30.30 [1] [b].) On March 19, 1998, defendant moved to dismiss the accusatory instrument on the ground that the People were not ready for trial within the statutory time. (CPL 30.30 [1] [b]; 170.30 [1] [e].) They have not yet declared their readiness for trial. Thus defendant has demonstrated a prima facie violation of the trial readiness rule, placing the burden on the People to establish sufficient excludable time to permit the prosecution to continue. (People v Luperon, 85 NY2d 71, 77-78 [1995]; People v Santos, 68 NY2d 859, 861 [1986]; People v Fields, 214 AD2d 332 [1st Dept 1995].)

The Sufficiency of the Record

Defendant requests a hearing on his motion to dismiss. Even without an explicit request for a hearing, the court must determine the threshold issue of whether the record presented permits disposition of the motion without a hearing. The only period the parties dispute is excludable is December 17, 1997, to February 25, 1998. With the parties' consent, the court ordered the transcripts of proceedings on December 17, 1997, adjourning the case to January 27, 1998, and on January 27, adjourning the case to February 25, 1998. These transcripts are the material evidence determinative of whether the adjournments for these periods should be chargeable to the People. Any relevant facts on which the parties do not agree may be determined from the minutes of these disputed adjournments. Beyond the court's review of the transcripts, no hearing is required. (People v Colon, 110 Misc 2d 917, 919 [Crim Ct, NY County 1981], revd 112 Misc 2d 790, revd and Crim Ct order reinstated for reasons stated in opn of Atlas, J., 59 NY2d 921 [1983]; cf., People v Santos, 68 NY2d, supra, at 861.)

The Record of Events

(1) On October 6, 1997, the Legal Aid Society was assigned to represent defendant, he was arraigned, and the case was information. The court decided the remaining motions, granting pretrial hearings on motions to suppress evidence, and adjourned the case to March 25, 1998, for the hearings. On March 19, 1998, defendant filed this motion to dismiss.

The Parties' Positions

The People maintain that when defendant proceeded with his motions December 17, 1997, he waived any further prereadiness delay due to the People's failure to convert the complaint to an information. (CPL 30.30 [4] [a].) Defendant agrees the time after February 25, 1998, is excludable because of his motion practice. (Id.; People v Worley, 66 NY2d 523, 527 [1985]; People v Torres, 60 NY2d 119, 127 [1983]; People v Batts, 227 AD2d 224 [1st Dept 1996]; People v Knight, 163 AD2d 583, 586 [2d Dept 1990].) Defendant contends, however, that the People's failure to convert the complaint to an information renders CPL 30.30 (4) (a)'s exclusion inapplicable to the two adjournment periods between December 17, 1997, and February 25, 1998. The statutory exclusions are intended to relieve the People of their duty to be ready for trial when they are not responsible for the delay in proceedings. Defendant takes this proposition a step further, urging that without an accusatory instrument on which the People can announce their readiness for trial, they are responsible for the delay and cannot invoke the exclusions. In addition, defendant contends that his motion practice did not waive any prereadiness delay due to the People's failure to convert the complaint. He claims he had no alternative, based on the court's erroneous ruling at arraignment deeming the complaint an information, which the court compounded on December 17, 1997, in confirming that the court at arraignment had indeed deemed the complaint an information. He argues that the misdemeanor complaint was a jurisdictionally defective accusatory instrument upon which neither his discovery demands, CPL 240.20 (1), nor his motions could proceed, and that this defect was nonwaivable. As the 90-day trial readiness time expired January 4, 1998, the issue is whether sufficient time between December 17, 1997, and February 25, 1998, is excludable to permit the prosecution to proceed.

The Effect of the People's Failure to Convert the Complaint

People v Worley (66 NY2d 523, supra) explicitly forecloses any argument that the tolling provisions of CPL 30.30 are ineffective October 6. Thus defendant is in no position to complain that the court's rulings exceeded statutory limitations on one or more components of his motions. Even if the motions violated the statutes, the motions did not divest the court of subject matter jurisdiction. In any event, the issue in People v Worley (66 NY2d, supra, at 526), whether the CPL 30.30 (4) (a) exclusion for motion practice applies to misdemeanor complaints, is indistinguishable from this case, even though Worley did not expressly address the relevance of misdemeanor complaints being omitted from the accusatory instruments listed in CPL 240.20. (See, People v LeBlanc, 165 Misc 2d 882, 888, n 2 [Crim Ct, Bronx County 1995].) The Court held that by requesting or consenting to delays resulting from motion practice, defendants create excludable time "even though defendants' actions did not prevent the People from obtaining accusatory instruments sufficient for trial". (People v Worley, 66 NY2d, supra, at 527.) Bound by Worley, this court cannot speculate that in Worley the Court erroneously failed to consider whether CPL 240.20's omission of misdemeanor complaints was jurisdictionally significant, much less that upon considering it the Court's decision would have been different.

Defendant's Waiver of Speedy Trial Time

Does the Worley rule apply, however, where defendant, based on repeated erroneous court rulings that the misdemeanor complaint had been converted, relinquished the opportunity to allow the speedy trial clock to run? If defendant's motions amounted to a waiver of speedy trial rights, was that waiver invalid because it was not knowing and voluntary? (Johnson v Zerbst, 304 US 458, 464 [1938]; People v Rodriguez, 50 NY2d 553, 557 [1980].) The People maintain that defendant cannot claim confusion concerning the consequences of his actions and that his knowing and voluntary initiation of motion practice tolled the speedy trial time. Defendant replies that he never would have made motions on the 73rd day of a running 90-day speedy trial clock had the erroneous rulings not compelled him to do so. On December 17, 1997, the court imposed a motion schedule with defendant's consent. (See, People v Knapp, 164 Misc 2d 216, 224-225 [Crim Ct, Richmond County 1995].) To challenge the claimed court errors of October 6 and December 17, 1997, regarding the conversion of the complaint, his most effective recourse may have been to file a motion setting forth that by the appellate authority in Jones and Worley (supra; People v Shakur, 215 AD2d 184, 185 [1st Dept 1995]; Stewart v Volkswagen of Am., 181 AD2d 4, 7 [2d Dept 1992]; People v Graham, 177 Misc 2d 542 [App Term, 2d Dept 1998].) However forceful an argument may be made that Vreeland provides a fairer result in these circumstances, the appellate courts must make that determination before this court, after Jones, may follow Vreeland.

Conclusion

The People were permitted to rely on CPL 30.30's tolling provisions to extend the time to convert the misdemeanor complaint whether or not, absent the extra time, the People would have defaulted on their speedy trial time. Defendant's request for or consent to a motion schedule amounted to an express waiver of his rights under CPL 30.30 (People v Meierdiercks, 68 NY2d 613, 614 [1986]), even if he proceeded based on the court's erroneous ruling that the complaint had been converted to an information. Therefore the court denies the motion to dismiss. [Portions of opinion omitted for purposes of publication.]