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People v. Nunez

Other Lower Courts

April 13, 2007

The People of the State of New York,
v.
Juan Nunez, Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Defendant represented by Elliot Kay, Esq.

People represented by A.D.A. Allen Karen, Bronx County District Attorney's Office.

OPINION

William Mogulescu, J.

Defendant moved to dismiss the indictment on the ground that he was denied his right to a speedy trial pursuant to CPL 30.30. In its previous decision dated December 8, 2006, incorporated herein, this Court found that the People were charged with 163 days of includable time, and held in abeyance its ruling regarding an additional 33 days pending receipt of the minutes from specific adjournments which the People had not yet provided to the Court. Upon receipt and review of the minutes, the Court, on March 13, 2007, orally granted defendant's motion to dismiss pursuant to CPL 30.30. This decision memorializes the Court's ruling.

On March 6, 2006, the case was adjourned to April 7, 2006, for hearing and trial as the People were not ready to proceed. In their initial set of motion papers the People asserted that they had requested a ten day adjournment. The People did not address this adjournment in their supplemental answer but have provided the minutes from this adjournment. The minutes reflect that the People initially requested a ten day adjournment. The Court, however, questioned the basis for the People's request and instructed the trial assistant in the part to telephone the assigned assistant to get further clarification of his readiness Following that telephone conversation the following colloquy with the Court ensued:

[Trial Assistant]: And he is asking for this as a control date, the possibility of a disposition on the 13th.

Court: In other words, he is not asking for the ten days to try this case....

[Trial Assistant]: He used the term control date.

Court: We don't adjourn things for control, we adjourn them for trial....When will he be ready for trial?

[Trial Assistant]: He is requesting four weeks, your Honor.

Accordingly, in this post-readiness posture the People are charged until the date requested, which is four weeks. People v. Cajigas, 224 A.D.2d 370 (1st Dept.), app. dismissed, 88 N.Y.2d 845 (1996); People ex rel. Sykes v. Mitchell, 184 A.D.2d 466 (1st Dept. 1992). The People having previously been charged with ten days from this adjournment are now charged with an additional 18 days.

On April 7, 2006, the People were again not ready for trial and the matter was adjourned to May 16, 2006, for hearing and trial. In the People's initial motion papers they asserted, without any support for the assertion, that they requested that the case be adjourned to April 17, 2006. This claim stood in contrast both to counsel's assertions and the Court's notations which reflected that the People requested that the case be adjourned to May 2, 2006. The People have now provided the minutes from this adjournment and again maintain that they requested an adjournment to April 17, 2006, and should be charged until that date. The minutes indicate the following colloquy:

[Trial assistant]: Your honor, the People are not ready.

The people are going to request April 17th.

Court: Mr. Karen's going to be trying these cases on April 17th.

Get Mr. Karen on the phone.

[Trial Assistant]: Your honor, Jill just spoke to ADA Karen and he said certainly if the other one, Armond Hamilton, which is the older one, is going to go, then he's going to request May 2.

While in a post-readiness posture the People are charged only until the date requested, "...it is the People's burden to ensure, in the first instance, that the record of the proceedings at which the adjournment was actually granted is sufficiently clear to enable the Court considering the subsequent CPL 30.30 motion to make an informed decision as to whether the People should be charged." People v. Cortes, 80 N.Y.2d 201, 215-26 (1992) (citations omitted);see People v. Collins, 82 N.Y.2d 177 (1993) (People's burden to make record in post-readiness situation). Here the record does not support the People's contention that they had in fact requested that the case be adjourned to April 17. Indeed, upon further inquiry by the Court it became clear that the People were merely speculating as to their readiness and felt compelled to request May 2 as the adjourn date. This Court is not unmindful of the difficulties faced by the trial assistants in maintaining their case load and moving cases to trial, especially when more often than not a confluence of factors must exist to do so. Regardless, the law does not excuse the People from being both genuine and realistic in their requests for adjournments. Further, the People are not without options in this regard for they can always file a certificate of readiness if one trial does not go forward as originally anticipated and they consequently become ready on another case in its stead. But merely requesting an adjourn date based on speculation of another event's occurrence is not what our case law contemplates in post-readiness requests for postponements. Accordingly, the People are charged until May 2, 2006. Having previously charged the People 10 days the People now stand charged with an additional15 days.

Although the Court did not hold in abeyance its decision regarding the June 13, 2006 to July 25, 2006 adjournment, the People again address the chargeability of this adjournment in their supplemental motion. Initially the Court held that the People were charged with this entire adjournment as they at no time filed a certificate of readiness despite being instructed to do so. Nothing in the minutes or the People's supplemental motion sways this Court from its initial ruling. The record indicates that the assistant district attorney requested that the case be adjourned to June 19th but that the Court explicitly rejected this request in light of what was proven to be frivolous past requests for adjournments and in the absence of any facts which would tend to support a finding that the People would in fact be ready on the date requested. Additionally, ...


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