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The People of the State of New York v. Richard M. Pepper

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


July 28, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
RICHARD M. PEPPER,
APPELLANT.

Appeal from three judgments of the Justice Court of the Town of Southampton, Suffolk County (Thomas DeMayo, J.), rendered February 3, 2010. The judgments convicted defendant, upon jury verdicts, of driving while intoxicated, driving across hazardous markings, and failing to maintain a single lane, respectively. The appeal from the judgments brings up for review an order denying defendant's motion to dismiss the accusatory instruments pursuant to CPL 30.30 (1) (b).

People v Pepper (Richard)

Decided on July 28, 2011

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: IANNACCI, J.P., NICOLAI and MOLIA, JJ

ORDERED that the judgment convicting defendant of driving while intoxicated is reversed, on the law, so much of the order as denied the branch of defendant's motion seeking to dismiss the accusatory instrument charging defendant with driving while intoxicated is vacated and that branch of defendant's motion is granted; and it is further, ORDERED that the judgments convicting defendant of driving across hazardous markings and failing to maintain a single lane are affirmed.

Defendant was charged in separate accusatory instruments with driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), driving across hazardous markings (Vehicle and Traffic Law § 1128-d) and failing to maintain a single lane (Vehicle and Traffic Law § 1128-a). Thereafter, defendant moved to dismiss the accusatory instruments on the ground that his statutory right to a speedy trial had been violated, as he had not been tried within 90 days of being charged (CPL 30.30 [1] [b]). The Justice Court denied defendant's motion, and, following a non-jury trial, defendant was convicted of the charged offenses. On appeal, defendant contends that his statutory speedy trial motion should have been granted, as the People were chargeable with a total of 151 days: June 13, 2007 to July 3, 2007 (20 days), November 8, 2007 to December 20, 2007 (42 days), February 7, 2008 to March 5, 2008 (27 days) and July 9, 2008 to September 8, 2008 (62 days).

The judgments convicting defendant of driving across hazardous markings and failing to maintain a single lane are affirmed, as CPL 30.30 does not impose a readiness deadline for traffic infractions (see People v May, 29 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2010]; People v Kozoriz, 15 Misc 3d 141[A], 2007 NY Slip Op 51068[U] [App Term, 2d & 11th Jud Dists 2007]; People v Taylor, 189 Misc 2d 313 [App Term, 9th & 10th Jud Dists 2001]). Consequently, defendant's statutory speedy trial claim will be considered only insofar as it pertains to his conviction for driving while intoxicated.

CPL 30.30 (1) (b) mandates that the People be ready for trial of a misdemeanor punishable by a sentence of imprisonment of more than three months within 90 days from the commencement of the criminal action. Once a defendant shows that more than a 90-day delay has elapsed, the burden of showing that certain periods of time should be excluded falls upon the People (see People v Berkowitz, 50 NY2d 333, 349 [1980]). The prosecution's failure to be ready within this statutory period or make a sufficient showing of excludability requires the dismissal of the accusatory instrument (see id.).

In this case, defendant asserted in his speedy trial motion that the prosecution was chargeable with a total of 151 days resulting from the following adjourned periods: June 13, 2007 to July 3, 2007 (20 days), November 8, 2007 to December 20, 2007 (42 days), February 7, 2008 to March 5, 2008 (27 days) and July 9, 2008 to September 8, 2008 (62 days). In opposition to defendant's motion, the People argued that they were not chargeable with the periods of November 8, 2007 to December 20, 2007 and February 7, 2008 to March 5, 2008. In support of their arguments, the People submitted minutes of proceedings occurring on these dates as well as notes from the court's docket sheet.

Absent a showing that the People had previously declared their readiness for trial (see People v Kendzia, 82 NY2d 676, 678 [1993]), the 42 days from November 8, 2007 to December 20, 2007 were not excludable as a delay caused by court scheduling (see People v Smith, 82 NY2d 676, 678 [1993]; People v Tavarez, 147 AD2d 355, 356 [1989]; People v Green, 90 AD2d 705, 706 [1982]). Thus, the People are chargeable with this time. The 27 days between February 7, 2008 and March 5, 2008 were also chargeable to the People, since the People failed to carry their burden of ensuring that the record of the proceeding where an adjournment is granted is sufficiently clear to enable a court deciding a CPL 30.30 motion to determine to whom that time should be charged (see People v Cortes, 80 NY2d 201, 215-216 [1992]). Upon a review of the minutes of the proceeding on February 7, 2008, it is unclear why the adjournment was granted, and the People made no statements on the record beyond stating that they would be unavailable for the first adjourned date proposed. Since they failed to establish that they had previously declared their readiness, the People remained obligated to affirmatively demonstrate their entitlements to exclusions (see People v Cortes, 80 NY2d at 213). As the People did not respond to defendant's arguments regarding the periods June 13, 2007 to July 3, 2007 and July 9, 2008 to September 8, 2008, they failed to carry their burden of proving their entitlement to the exclusion of this time and effectively conceded 82 days of includable time (see generally People v Chavis, 91 NY2d 500, 504-505 [1998]). We therefore find that the People were chargeable with 151 days, which exceeded the 90-day statutory limit.

Consequently, the judgment convicting defendant of driving while intoxicated is reversed, so much of the order as denied the branch of defendant's motion seeking to dismiss, on speedy trial grounds, the accusatory instrument charging defendant with driving while intoxicated is vacated, and that branch of defendant's motion is granted (see People v Brown, 69 AD3d 871 [2010]).

Iannacci, J.P., Nicolai and Molia, JJ., concur.

Decision Date: July 28, 2011

20110728

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