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People ex rel. Ferro v. Brann
Factual and Procedural Background
This matter is a writ of habeas corpus in the nature of an application to release Maximo Burdier upon his own recognizance pursuant to CPL 30.30(2)(a) or, in the alternative, for bail reduction, arising from Queens County Indictment No. 1361/2020. The petitioner sought relief under CPL 30.30 due to alleged delay in bringing Mr. Burdier to trial. The Supreme Court, Queens County, had set deadlines for the People to respond to the defendant's omnibus motion; the People filed a certificate of compliance pursuant to CPL 30.30(5) and later filed a response to the omnibus motion after the court-imposed deadline. The Appellate Division reviewed the habeas petition and the parties' submissions and issued the decision sustaining the writ and remitting the matter to Supreme Court to set reasonable bail or release Mr. Burdier on his own recognizance.
Legal Issues Presented
- Whether more than the statutorily prescribed time under CPL 30.30 elapsed without a declaration of readiness by the People such that relief under CPL 30.30(2)(a) is warranted.
- Whether any portion of the delay is excludable to the People (including whether the People’s certificate of compliance could be deemed complete prior to actual production of identified discovery and whether the substitution of an assistant district attorney constituted an exceptional circumstance).
- If delay is chargeable to the People and exceeds 90 days, whether the appropriate relief is release on bail the defendant can meet or release on his own recognizance.
Arguments of the Parties
Petitioner's Arguments
- The petitioner moved under CPL 30.30 to dismiss or, alternatively, to be released on his own recognizance or for bail reduction due to delay in bringing him to trial.
Respondent's (People's) Arguments
- The People contended that their filing of a certificate of compliance pursuant to CPL 30.30(5) was complete and that such filing affected the speedy-trial calculus.
- The People implicitly or explicitly argued that substitution of a different assistant district attorney justified exclusion of the time between the court-imposed deadline for responding to the omnibus motion and the date on which the People ultimately filed their response (i.e., that substitution was an exceptional circumstance).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| People v. Santos, 68 N.Y.2d 859, 508 N.Y.S.2d 411, 501 N.E.2d 19 | Defendant's initial burden to demonstrate inexcusable delay beyond statutory time under CPL 30.30. | Used to state that once defendant alleges statutory time elapsed, burden shifts to People to establish excludable delay. |
| People v. Berkowitz, 50 N.Y.2d 333, 428 N.Y.S.2d 927, 406 N.E.2d 783 | People bear burden of establishing sufficient excludable delay. | Reinforced the allocation of burden to the People to justify delay. |
| People v. Cortes, 80 N.Y.2d 201, 590 N.Y.S.2d 9, 604 N.E.2d 71 | People must ensure the record is sufficiently clear to permit informed CPL 30.30 decisions. | Applied to require the People to produce a clear record so the court can decide whether the People should be charged with delay. |
| People v. Mashiyach, 70 Misc.3d 456, 135 N.Y.S.3d 610 | CPL 245.10 abolishes discovery-by-demand and requires automatic discovery under CPL 245.20; thus former CPL 30.30(4)(a) exclusion for waiting for discovery is no longer applicable. | Adopted to explain that exclusions based on waiting for discovery demands are inapplicable under the current automatic-discovery scheme. |
| People v. Aquino, 72 Misc.3d 518, 146 N.Y.S.3d 906 | Certificate of compliance under CPL 30.30(5) is not complete until materials identified are actually produced per CPL 245.50(1) and (3). | Applied to conclude the People's certificate of compliance could not be deemed complete until actual production occurred. |
| People v. Headley, 100 A.D.3d 775, 954 N.Y.S.2d 121 | Substitution of counsel is not an exceptional circumstance rendering the intervening time excludable. | Relied upon to hold that substitution of a different assistant district attorney did not render the delay excludable. |
| People v. Warren, 85 A.D.2d 747, 445 N.Y.S.2d 797 | Support for the principle that substitution of counsel does not automatically excuse delay. | Applied alongside Headley to charge the People with the elapsed time after the court-imposed deadline. |
| People v. Delosanto, 307 A.D.2d 298, 763 N.Y.S.2d 629 | People are chargeable with the time between a court-imposed deadline and the date on which the People file their response. | Used to charge the People with the delay between the omnibus-motion response deadline and the People's actual filing date. |
| People ex rel. Chakwin v. Warden, N.Y. City Correctional Facility, Rikers Is., 63 N.Y.2d 120, 480 N.Y.S.2d 719, 470 N.E.2d 146 | CPL 30.30(2)(a) requires release on bail the defendant can meet, or on his own recognizance, when more than 90 days of delay are chargeable to the People. | Applied to order that Mr. Burdier be released on bail he can meet or on his own recognizance because over 90 days of delay were chargeable to the People. |
| People ex rel. Campbell v. Brann, 193 A.D.3d 669, 141 N.Y.S.3d 724 | Illustrates remedy under CPL 30.30(2)(a) where delay is chargeable to the People. | Relied upon as precedent supporting the relief ordered under CPL 30.30(2)(a). |
Court's Reasoning and Analysis
The court first recited the burden framework under CPL 30.30: a defendant moving to dismiss for delay must initially demonstrate, by sworn allegations, that inexcusable delay beyond the statutory time has occurred (People v. Santos). Once the defendant makes that showing, the People must establish any excludable delay and ensure the record is sufficiently clear for the court to determine whether the People should be charged with delay (People v. Berkowitz; People v. Cortes).
The court noted the statutory change to discovery under CPL 245.10/245.20, which abolished discovery-by-demand and requires automatic disclosure, meaning the former CPL 30.30(4)(a) exclusion for waiting on discovery demands is no longer applicable (People v. Mashiyach).
Applying CPL 245.50(1) and (3) and precedent, the court held that the People's certificate of compliance under CPL 30.30(5) could not be deemed complete until the materials identified were actually produced to the defendant (People v. Aquino). The court further held that substitution of a different assistant district attorney did not constitute an exceptional circumstance rendering the time between the court-imposed deadline for the People's omnibus-response and the People's eventual filing excludable (People v. Headley; People v. Warren). Consequently, the People were chargeable with the time between the deadline and their actual filing (People v. Delosanto).
Because more than 90 days of delay in bringing Mr. Burdier to trial were chargeable to the People, the court concluded that CPL 30.30(2)(a) required release on bail the defendant could meet or upon his own recognizance (People ex rel. Chakwin; People ex rel. Campbell).
Holding and Implications
The writ is sustained, and the matter is remitted to the Supreme Court, Queens County, to set reasonable bail or to release Maximo Burdier on his own recognizance, and to fix such other terms and conditions upon his release as the court deems just and proper.
Direct effect: Mr. Burdier must be released on bail that he is capable of meeting or on his own recognizance, and the case is returned to the Supreme Court to set bail or conditions. The opinion does not announce a new broad precedent beyond applying existing CPL 30.30 and discovery principles to these facts.
Queens Defenders, Forest Hills, N.Y. (Shane Ferro pro se of counsel), for petitioner.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Sharon Y. Brodt, and Hannah X. Scotti of counsel), for respondent.
LEONARD B. AUSTIN, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, WILLIAM G. FORD, JJ.
DECISION & JUDGMENT Writ of habeas corpus in the nature of an application to release Maximo Burdier upon his own recognizance pursuant to CPL 30.30(2)(a) or, in the alternative, for bail reduction, upon Queens County Indictment No. 1361/2020.
ADJUDGED that the writ is sustained, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, to set reasonable bail or to release Maximo Burdier on his own recognizance, and to fix such other terms and conditions upon the release of Maximo Burdier as may seem to it to be just and proper.
A defendant making a motion pursuant to CPL 30.30 to dismiss an indictment has the initial burden of demonstrating, by sworn allegations of fact, that there has been an inexcusable delay beyond the time set forth in the statute (see People v. Santos, 68 N.Y.2d 859, 508 N.Y.S.2d 411, 501 N.E.2d 19 ). Once a defendant has alleged that more than the statutorily prescribed time has elapsed without a declaration of readiness by the People, the People bear the burden of establishing sufficient excludable delay (see id. ; People v. Berkowitz, 50 N.Y.2d 333, 348–349, 428 N.Y.S.2d 927, 406 N.E.2d 783 ). The burden is on the People "to ensure, in the first instance, that the record of the proceedings ... is sufficiently clear to enable the court considering the ... CPL 30.30 motion to make an informed decision as to whether the People should be charged" with any delay ( People v. Cortes, 80 N.Y.2d 201, 215–216, 590 N.Y.S.2d 9, 604 N.E.2d 71 ).
The current statutory framework of CPL 245.10 "abolishes the prior mechanism for obtaining discovery through serving a demand upon the People and instead requires the People provide the discovery listed in CPL 245.20 ‘automatically’ within the deadlines established" therein ( People v. Mashiyach, 70 Misc.3d 456, 461, 135 N.Y.S.3d 610 ). "As discovery demands are now defunct, the exclusion provided for in [ CPL 30.30 ] subdivision (4)(a) is no longer applicable to the period of time when the defendant is waiting for discovery to be provided by" the People ( id. at 462, 135 N.Y.S.3d 610 ).
Here, contrary to the People's contention, their filing of the certificate of compliance pursuant to CPL 30.30(5) could not be deemed complete until all of the material and information identified in the certificate as subject to discovery and electronically shared with the defendant was actually produced to the defendant, pursuant to CPL 245.50(1) and (3) (see People v. Aquino, 72 Misc.3d 518, 523, 146 N.Y.S.3d 906 ). Moreover, in this case, the substitution of a different assistant district attorney did not constitute an exceptional circumstance that would render excludable for speedy trial purposes the time period between the date to which the Supreme Court adjourned the matter for the filing of the People's response to the defendant's omnibus motion, and the date upon which the People ultimately filed their response (see People v. Headley, 100 A.D.3d 775, 776, 954 N.Y.S.2d 121 ; People v. Warren, 85 A.D.2d 747, 748, 445 N.Y.S.2d 797 ). Thus, the People are chargeable with the time between the court-imposed deadline to respond to the omnibus motion and the date on which the People actually filed a response (see People v. Delosanto, 307 A.D.2d 298, 299, 763 N.Y.S.2d 629 ). Accordingly, since more than 90 days of delay in bringing Maximo Burdier to trial on Queens County Indictment No. 1361/2020 are chargeable to the People, CPL 30.30(2)(a) requires that he be released on bail which he is capable of meeting, or upon his own recognizance (see People ex rel. Chakwin v. Warden, N.Y. City Correctional Facility, Rikers Is., 63 N.Y.2d 120, 480 N.Y.S.2d 719, 470 N.E.2d 146 ; People ex rel. Campbell v. Brann, 193 A.D.3d 669, 141 N.Y.S.3d 724 ).
AUSTIN, J.P., CHRISTOPHER, WOOTEN and FORD, JJ., concur.
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