The defendant, Gordon Tarrant, moves to dismiss the criminal action on the ground that he has been denied his statutory right to a speedy trial pursuant to Criminal Procedure Law (CPL) §§30.20(1) and 30.30(1)(c).The defendant is charged with Criminal Possession of Marihuana in the Fifth Degree, in violation of Penal Law §221.10(1) and with Unlawful Possession of Marihuana, in violation of Penal Law §221.05.It is alleged that on July 4, 2017 at approximately 1:05 p.m., in the vicinity of 2 Amsterdam Place, in the City of Mount Vernon, County of Westchester, the defendant was observed smoking a burning brown marihuana cigarette in public view while on a public sidewalk. The marihuana was recovered and the defendant was arrested. Later that same day, the Mount Vernon Police Department gave the defendant a Desk Appearance Ticket, releasing him and directing the defendant to return on July 13, 2017. Prior to releasing the defendant, the defendant was fingerprinted by the Mount Vernon Police Department and his photograph was taken. The information that the defendant provided to Mount Vernon Police included that his date of birth was September 1, 1977. This date of birth, provided by the defendant was incorrect, which resulted in the rapsheet indicating he had no prior arrests in New York State. Unbeknownst to the Mount Vernon Police Department, defendant’s correct date of birth was February 17, 1977, and he had been arrested in the City of Mount Vernon on at least nine separate dockets in the last ten years. On all of those dockets his date of birth was listed as February 17, 1977. Adding more confusion to the defendant’s date of birth, the Desk Appearance Ticket that he received that same day listed his date of birth as September 1, 1957. Coincidentally, another defendant with the same name, Gordon Tarrant, simultaneously had cases also in Mount Vernon City Court with a birth date of September 1, 1957.On July 13, 2017, the defendant purportedly appeared in Mount Vernon City Court for arraignment. The defendant disputes that he appeared on that date. The court file, however, indicates that a Gordon Tarrant appeared, was arraigned, the People declared readiness for trial, and the defendant was informed on the record in open court that his next court date was July 20, 2017. On July 20, 2017, the defendant did not appear and a bench warrant was issued for his arrest.On April 26, 2018, the defendant was picked up as part of a drug sweep and the bench warrant on this docket was executed. The defendant was arraigned on this docket and the People stated their readiness. Defendant was also arraigned on this date on his new arrest and bail was set on both cases. This case was adjourned at the defendant’s request to May 14, 2018.On May 14, 2018, defendant was produced and the matter was adjourned at defendant’s request to June 4, 2018. On June 4, 2018, the defendant was present and the matter was adjourned at his request to June 26, 2018. On June 26, 2018, the matter was adjourned at the defendant’s request to July 11, 2018. On July 11, 2018, the defendant adjourned the matter to September 5, 2018 for Jury Pretrial.On August 22, 2018, the defendant served the instant motion seeking to dismiss the accusatory instrument on the ground that he has been denied his right to a speedy trial. Counsel for the defendant contends that her client was not arraigned on this docket on July 13, 2017 and never appeared in this court to answer that docket until he was arrested on an unrelated matter and brought before the court on April 24, 2018.Pursuant to CPL 30.30(1), the applicable speedy trial time is determined based on the highest charge in the accusatory instrument. (People v. Walton, 165 Misc 2d 672, 674 [Crim Ct, Richmond County 1995].) Where, as here, the top count charged in the Information is a misdemeanor punishable by up to one year in jail, the People are required to be ready for trial within ninety days of the defendant’s arraignment, less any excludable time (CPL §30.30(1) (b). In general, the ninety-day period commences with the fling of the accusatory instrument (see CPL §1.20(17); People v. Stirrup, 91 NY2d 434, 438 [1998]). However, C.P.L. §30.30(5)(b) provides that where a defendant has been issued an appearance ticket, the criminal action must be deemed to have commenced on the date the defendant first appears in a local criminal court in response to the ticket. Thus, in a situation where a desk appearance ticket has been issued to a defendant, the criminal action commences for jurisdiction purposes (including issuance of a warrant) when the accusatory instrument is filed, but for CPL §30.30 timing purposes, the commencement date is the date of defendant’s first appearance (People v. Stirrup, 91 NY2d 434 (1998).The defendant has the initial burden of showing, through sworn allegations of fact, that there has been an inexcusable delay beyond the time allotted by the statute. (People v. Santos, 68 NY2d 859, 861 [1986].) Once the defendant has made that showing, the People bear the burden of demonstrating sufficient excludable time in order to withstand a motion to dismiss. (Id.)First, the Court file indicates, that the defendant was arraigned on July 13, 2017, and to date the defendant has not sworn out any facts to the contrary. Assuming arguendo that the defendant was not arraigned on the return date of the Desk Appearance Ticket on July 13, 2017, the speedy trial time would not start until defendant actually appeared in court which was on April 26, 2018. The Court record indicates that when he was returned on the bench warrant on April 26, 2018, the People arraigned the defendant and stated ready on that date.Irrespective of either scenario, whether the defendant was arraigned and then a bench warrant was issued, or that the defendant never appeared on his Desk Appearance Ticket, none of the time from July 13, 2017 through the present is chargeable to the People. Any delay has been caused by either the defendant’s intentional failure to appear in court, or his request for an adjournment.Defendant also moves to dismiss for denial of his constitutional right to a speedy trial. In People v. Taranovich, 37 NY2d 442 (1975), the Court of Appeals set forth five factors to be considered when deciding a constitutional speedy trial motion. They are the extent of the delay, the reason for the delay, the nature of the underlying charge, the defendant’s bail status and whether there is any indication that the defense has been impaired by the delay. This Court concludes, once again, that if any delay has resulted, the defendant has been responsible for it, and moreover, the defendant has not alleged any impairment of his defense.Accordingly, based on the parties’ submissions, and my review of the record, the defendant’s motion to dismiss the accusatory instrument is denied in its entirety.This constitutes the Decision and Order of this Court.Dated: September 24, 2018Mount Vernon, New York
